MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                                 FILED
Memorandum Decision shall not be regarded as                           Jul 27 2017, 11:38 am
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,                        CLERK
                                                                        Indiana Supreme Court
collateral estoppel, or the law of the case.                               Court of Appeals
                                                                             and Tax Court




ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Donald C. Swanson, Jr.                                 Curtis T. Hill, Jr.
Deputy Public Defender                                 Attorney General of Indiana
Fort Wayne, Indiana
                                                       George P. Sherman
                                                       Deputy Attorney General
                                                       Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Marc Edward Zumwalt,                                       July 27, 2017

Appellant-Defendant,                                       Court of Appeals Case No.
                                                           02A04-1701-CR-175

        v.                                                 Appeal from the Allen Superior
                                                           Court
State of Indiana,                                          The Honorable Frances C. Gull,
                                                           Judge
Appellee-Plaintiff.
                                                           Trial Court Cause No.
                                                           02D05-1606-F1-10




Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A04-1701-CR-175 | July 27, 2017             Page 1 of 7
                                          Case Summary
[1]   In March of 2016, Appellant-Defendant Marc Zumwalt was living with M.H., a

      four-year-old boy, and N.G., a two-year-old girl, and their parents when the

      children were removed from the home and placed in foster care. M.H. told one

      of his foster parents that Zumwalt had molested himself and his sister. In a

      police interview, Zumwalt admitted to fondling M.H. and N.G., licking M.H.’s

      penis, and placing his tongue on N.G.’s vagina. The State charged Zumwalt

      with two counts of Level I felony child molesting and two counts of Level 4

      felony child molesting. A jury found Zumwalt guilty as charged, and the trial

      court sentenced him to an aggregate sentence of 104 years of incarceration.

      Zumwalt contends that the admission of his incriminating police interview

      amounts to fundamental error and that his two convictions for molesting N.G.

      violate prohibitions against double jeopardy. Because we disagree, we affirm.



                            Facts and Procedural History
[2]   On March 24, 2016, M.H., a four-year-old boy, and N.G., a two-year-old girl,

      were removed from their Fort Wayne home after a search warrant uncovered

      marijuana, cocaine, and evidence of methamphetamine manufacture. At the

      time, Zumwalt had been residing in the home with M.H., N.G., and their

      parents. M.H. and N.G. were placed in licensed foster care. Around April 5,

      2016, M.H. told one of his foster parents that Zumwalt touched his “butt” and

      “private part.” Tr. Vol. II p. 36. M.H.’s foster parents contacted the Indiana

      Department of Child Services. On April 15, 2016, both children were

      Court of Appeals of Indiana | Memorandum Decision 02A04-1701-CR-175 | July 27, 2017   Page 2 of 7
      interviewed, and M.H., in addition to repeating his allegations of molestation

      against Zumwalt, said that Zumwalt had also molested N.G.


[3]   Police interviewed Zumwalt on May 5 and May 17, 2016. Before each

      interview, police presented Zumwalt with an “Advice of Rights” form, which

      police went through with Zumwalt and he then signed. State’s Exs. 5, 7. The

      forms indicated to Zumwalt that he had the right to remain silent, anything he

      said could and would be used against him in a court of law, he had the right to

      any attorney and to have one present during questioning, he could have an

      attorney appointed to him if he could not afford one, and he had the right to

      terminate the interviews at any time.


[4]   Fort Wayne Police Detective Roy Sutphin interviewed Zumwalt on May 17,

      2016. Zumwalt told Detective Sutphin that “I need my nuts cut … so this s***

      doesn’t happen.” State’s Ex. 8 part 1 at 11:25-11:30. Zumwalt admitted that he

      had once touched N.G.’s vagina with his hand because he was aroused and had

      an erection at the time.


[5]   As for M.H., Zumwalt explained that “[h]is mother talked about him having a

      big d***” and that he was “curious wanting to see it.” State’s Ex. 8 part 1 at

      17:05-17:15. Zumwalt admitted that he had touched M.H.’s penis but claimed,

      initially, that he could not remember ever fellating him. Zumwalt also admitted

      that, approximately one-and-one-half years previously, he had “played with

      [M.H.’s penis], touched his nuts, pulled it, played it and let go.” State’s Ex. 8

      part 2 at 4:35-4:40. Zumwalt admitted that he had done that to M.H. four or


      Court of Appeals of Indiana | Memorandum Decision 02A04-1701-CR-175 | July 27, 2017   Page 3 of 7
      five times. Near the end of the interview, Zumwalt admitted that he had put his

      tongue on N.G.’s vagina and had “licked the head” of M.H.’s penis one time.

      State’s Ex. 8 part 2 at 13:40.


[6]   On July 1, 2014, the State charged Zumwalt with two counts of Level 1 felony

      child molesting and two counts of Level 4 felony child molesting. Zumwalt’s

      jury trial was held on November 29 and 30, 2016. M.H. testified that Zumwalt

      “touched [his] pee-pee … [a] lot of times” with his hand and “put his mouth on

      [M.H.’s] private … [a] lot of times.” Tr. Vol. II pp. 44, 47-48. M.H. testified

      that he had witnessed Zumwalt “touch[ing N.G.’s] privates, too.” Tr. Vol. II p

      45. The jury found Zumwalt guilty as charged, and, on December 22, 2016, the

      trial court sentenced him to an aggregate sentence of 104 years of incarceration.


                                 Discussion and Decision
                                             I. Confession
[7]   Zumwalt contends that the admission of evidence related to his police interview

      conducted on May 17, 2016, during which he confessed to molesting M.H. and

      N.G., amounts to fundamental error.


              Appellate courts may, on rare occasions, resort to the
              fundamental error exception to address on direct appeal an
              otherwise procedurally defaulted claim. But fundamental error is
              extremely narrow and available only when the record reveals a
              clearly blatant violation of basic and elementary principles,
              where the harm or potential for harm cannot be denied, and
              which violation is so prejudicial to the rights of the defendant as
              to make a fair trial impossible.

      Court of Appeals of Indiana | Memorandum Decision 02A04-1701-CR-175 | July 27, 2017   Page 4 of 7
      Jewell v. State, 887 N.E.2d 939, 942 (Ind. 2008).


[8]   We conclude that a claim of fundamental error in the admission of his police

      interview is not available to Zumwalt. As the State notes, Zumwalt specifically

      stated that “[t]here’s no objection to [State’s Exhibit] 8[,]” which is the video

      recording of the May 17, 2016, interview. Tr. Vol. II p. 125. The Indiana

      Supreme Court has held that the doctrine of fundamental error is inapplicable

      under such circumstances. Halliburton v. State, 1 N.E.3d 670, 679 (Ind. 2013).

      As the Court noted,

              [t]he doctrine presupposes the trial judge erred in performing
              some duty that the law had charged the judge with performing
              sua sponte. Presumably a trial judge is aware of her own sua sponte
              duties. But upon an express declaration of “no objection” a trial
              judge has no duty to determine which exhibits a party decides,
              for whatever strategic reasons, to allow into evidence.
      Id. Because Zumwalt specifically stated that he had no objection to the

      admission of State’s Exhibit 8, he may not now claim that its admission

      amounts to fundamental error.


                                       II. Double Jeopardy
[9]   Zumwalt contends that his two convictions for molesting N.G. violate Indiana

      constitutional prohibitions against double jeopardy, specifically, the “actual

      evidence” test. In Richardson v. State, 717 N.E.2d 32 (Ind. 1999), the Indiana

      Supreme Court held “that two or more offenses are the ‘same offense’ in

      violation of Article I, Section 14 of the Indiana Constitution, if, with respect to

      … the actual evidence used to convict, the essential elements of one challenged

      Court of Appeals of Indiana | Memorandum Decision 02A04-1701-CR-175 | July 27, 2017   Page 5 of 7
       offense also establish the essential elements of another challenged offense.” Id.

       at 49-50. The Richardson court stated the actual evidence test as follows:


               To show that two challenged offenses constitute the “same
               offense” in a claim of double jeopardy, a defendant must
               demonstrate a reasonable possibility that the evidentiary facts
               used by the fact-finder to establish the essential elements of one
               offense may also have been used to establish the essential
               elements of a second challenged offense.
       Id. at 53.


[10]   While Zumwalt acknowledges that he confessed to touching N.G.’s vagina with

       his tongue, he contends that there is no evidence of any other act that would

       support his conviction for Level 4 felony child molestation of N.G. Zumwalt,

       however, also admitted in his May 17, 2016, interview that he had touched

       N.G.’s vagina with his hand while aroused and while having an erection.

       Moreover, M.H. testified that he had witnessed Zumwalt “touch[ing N.G.’s]

       privates, too.” Tr. Vol. II p 45. This evidence is sufficient to support

       Zumwalt’s separate conviction for Level 4 felony child molesting. See Ind.

       Code § 35-42-4-3(b) (“A person who, with a child under fourteen (14) years of

       age, performs or submits to any fondling or touching, of either the child or the

       older person, with intent to arouse or to satisfy the sexual desires of either the

       child or the older person, commits child molesting, a Level 4 felony.”).

       Zumwalt has failed to establish that his two convictions for molesting N.G.

       violate prohibitions against double jeopardy.




       Court of Appeals of Indiana | Memorandum Decision 02A04-1701-CR-175 | July 27, 2017   Page 6 of 7
[11]   Zumwalt notes that at sentencing, the prosecutor suggested that the trial court

       merge or run the sentences for the convictions relating to N.G. concurrently,

       stating, “I think there was really testimony at trial, that, conservatively, he

       committed one act with respect to N.G.” As explained, however, this is

       incorrect, as the record supports the jury’s finding that Zumwalt committed

       multiple acts. That said, the trial court was not bound by the prosecutor’s

       suggestion. See Gardner v. State, 591 N.E.2d 592, 593 (Ind. Ct. App. 1992)

       (stating, “Were we to accept a concession as dispositive of an issue, we would

       effectively abdicate our judicial function in favor of a party.”). Because the

       prosecutor’s suggestion that Zumwalt committed only one act against N.G. was

       not supported by the record, we do not accept it as dispositive.


[12]   We affirm the judgment of the trial court.


       Brown, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A04-1701-CR-175 | July 27, 2017   Page 7 of 7
