MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
                                                                             FILED
court except for the purpose of establishing                             Jul 12 2017, 8:28 am

the defense of res judicata, collateral                                      CLERK
                                                                         Indiana Supreme Court
estoppel, or the law of the case.                                           Court of Appeals
                                                                              and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Paul J. Podlejski                                        Curtis T. Hill, Jr.
Anderson, Indiana                                        Attorney General of Indiana
                                                         Chandra K. Hein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Milton Triplett,                                         July 12, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         48A02-1611-CR-2628
        v.                                               Appeal from the Madison Circuit
                                                         Court
State of Indiana,                                        The Honorable Angela Warner
Appellee-Plaintiff                                       Sims, Judge
                                                         Trial Court Cause Nos.
                                                         48C01-1112-FD-2301
                                                         48C01-1601-F1-92



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 48A02-1611-CR-2628 | July 12, 2017             Page 1 of 12
[1]   Milton Triplett appeals his convictions for three counts of Level 1 Felony Child

      Molesting,1 arguing that the trial court made evidentiary errors. Triplett also

      appeals the sentence imposed by the trial court, arguing that it is inappropriate

      in light of the nature of the offenses and his character. Finding no error and

      that the sentence is not inappropriate, we affirm.


                                                     Facts
[2]   In October 2014, S.R. was twelve years old. At that time, S.R.’s mother,

      Jennifer McGuire, had parenting time with S.R. for two days per week, every

      other weekend, and on certain holidays. McGuire was dating Triplett, and the

      two had a two-year-old child together, K.T.


[3]   On the morning of October 17, 2014, S.R. was on fall break and was at

      McGuire’s residence. McGuire was at work and Triplett and K.T., who was

      asleep in her room, were home. S.R. was asleep on the couch and woke up

      with Triplett on top of her. He kissed her and pulled her pants down; he was

      not wearing pants. Triplett removed her underwear and inserted his “hard”

      penis into her vagina. Tr. Vol. II p. 168. He kept his penis inside her vagina for

      ten to fifteen minutes; he then took a shower and made breakfast. Triplett told

      S.R. not to tell anybody. One to two weeks later, S.R. began noticing regular

      vaginal discharge that “was yellow and smelled bad[.]” Id. at 171, 214.




      1
          Ind. Code § 35-42-4-3.


      Court of Appeals of Indiana | Memorandum Decision 48A02-1611-CR-2628 | July 12, 2017   Page 2 of 12
[4]   Over the course of the next few months, Triplett forced S.R. to have sexual

      intercourse with him five to six other times. Each time, he climbed on top of

      her as she was sleeping in the morning, and the intercourse lasted for ten to

      fifteen minutes. K.T. was in the house during each incident; during the last

      incident in April 2015, K.T. interrupted the molestation. She walked into the

      room, saw S.R. and Triplett engaged in the act of intercourse, and yelled,

      “Daddy[.]” Id. at 180. He “kept going for a few minutes and then he just got

      off[.]” Id. S.R. is able to pinpoint the precise dates of most of the encounters

      because they coincided with specific events such as school breaks, holidays, or

      the death of her dog.


[5]   In July 2015, S.R. started going to counseling after she began having suicidal

      thoughts and desires to cut herself. In September 2015, she was admitted to an

      inpatient hospital after relatives discovered that she had been cutting herself in

      multiple places on her hips, thighs, and arms; she remained in the hospital for

      one week and continued with regular intensive counseling thereafter. S.R.’s

      grades began dropping precipitously and her behavior changed.


[6]   On January 7, 2016, S.R. went to the hospital because of severe back pain. 2 In

      the course of medical treatment, S.R. provided a urine sample, which tested

      positive for trichomoniasis, a sexually transmitted disease. One of the

      symptoms of trichomoniasis is abnormal vaginal discharge. After being




      2
          The back pain was later determined to result from an unrelated cyst on S.R.’s tailbone.


      Court of Appeals of Indiana | Memorandum Decision 48A02-1611-CR-2628 | July 12, 2017          Page 3 of 12
      questioned about who her sexual partner(s) had been, S.R. “broke and just

      told” the nurse practitioner that Triplett had been forcing her to have sex. Tr.

      Vol. II p. 186. Hospital employees then called the police.


[7]   One week later, after S.R. had been forensically interviewed, Triplett was

      arrested. During transport, Triplett asked Officer Joshua Bowling why he was

      being taken to the police station; Officer Bowling responded that he did not

      know the facts of the case. Triplett then stated that “he possibly knew that it

      was involving, uh, his girlfriend and her thirteen (13) year old daughter.” Tr.

      Vol. III p. 161-62. Triplett’s medical records indicate that he had

      trichomoniasis in 2014 and 2015.


[8]   On January 15, 2016, the State charged Triplett with three counts of Level 1

      felony child molesting. Triplett’s jury trial took place on September 7-9, 2016.

      At trial, Triplett attempted to introduce testimony from McGuire that she may

      have seen the aftermath of a sexual encounter between S.R. and a boy, 3 but

      McGuire was unable to provide a time frame for the incident so the trial court

      excluded the evidence. Triplett testified at trial and was permitted to testify that

      he had twice seen what he believed was the aftermath of a sexual encounter

      between S.R. and a boy, which he claimed occurred between July and August

      2015 and November and December 2015, respectively.




      3
        Triplett states that the reason he wanted this testimony introduced into evidence was to provide an alternate
      theory regarding the identity of the person who may have transmitted trichomoniasis to S.R.

      Court of Appeals of Indiana | Memorandum Decision 48A02-1611-CR-2628 | July 12, 2017              Page 4 of 12
[9]    Also at trial, the State offered testimony from Barbara Vernon, who is an expert

       regarding child abuse. Vernon did not know anything about S.R. and had no

       knowledge of the facts in this case. Instead, she testified generally about the

       disclosure process of abused children, focusing on why child victims sometime

       delay disclosing the abuse. Vernon also explained what can break the delayed

       disclosure cycle and cause a child to disclose. At no point did Vernon comment

       about S.R.’s truthfulness or connect any of her comments to S.R. Triplett

       objected to the testimony, arguing that it was irrelevant and constituted

       improper vouching. The trial court overruled the objections and permitted

       Vernon to testify.


[10]   At the conclusion of the trial, the jury found Triplett guilty as charged. On

       October 18, 2016, the trial court sentenced Triplett to three consecutive thirty-

       five-year terms, for an aggregate term of 105 years imprisonment. Additionally,

       Triplett was serving probation in another cause when he committed these

       offenses. The trial court revoked his probation in that cause and sentenced him

       to 365 days in that cause, with the 105-year term to be served consecutively to

       the 365-day term.4 Triplett now appeals.




       4
        The cause number under which Triplett’s probation was revoked is 48C01-1112-FD-2301. That cause has
       been consolidated with the child molesting cause for the purpose of this appeal. Triplett makes no separate
       or unique arguments under FD-2301, simply wrapping that cause into his sentencing argument.

       Court of Appeals of Indiana | Memorandum Decision 48A02-1611-CR-2628 | July 12, 2017            Page 5 of 12
                                    Discussion and Decision
                                        I. Evidentiary Issues
[11]   Triplett first argues that the trial court erred by excluding McGuire’s testimony

       regarding S.R.’s possible other sexual encounter and by admitting Vernon’s

       testimony about child abuse victims in general. The admission and exclusion of

       evidence falls within the trial court’s sound discretion, and we will reverse only

       if the decision is clearly against the logic and effect of the facts and

       circumstances before it. Johnson v. State, 6 N.E.3d 491, 498 (Ind. Ct. App.

       2014).


                 A. Evidence Regarding S.R.’s Sexual History
[12]   As a general rule, Indiana Evidence Rule 412 prohibits the introduction of

       evidence of prior sexual conduct of an alleged victim of a sex crime. Id. (noting

       that “Rule 412 is intended to prevent the victim of a sexual assault from being

       put on trial” and that it “reflects the insight of Indiana’s Rape Shield Statute . . .

       that inquiry into a victim’s prior sexual history is sufficiently problematic that it

       should not be permitted to become a focus of the defense”). In pertinent part,

       Rule 412 states as follows:

                (a)     Prohibited Uses. The following evidence is not admissible
                        in a civil or criminal proceeding involving alleged sexual
                        misconduct:


                        (1)     evidence offered to prove that a victim or witness
                                engaged in other sexual behavior; or


       Court of Appeals of Indiana | Memorandum Decision 48A02-1611-CR-2628 | July 12, 2017   Page 6 of 12
                        (2)     evidence offered to prove a victim’s or witness’s
                                sexual predisposition.


               (b)      Exceptions.


                        (1)     Criminal Cases. The court may admit the following
                                evidence in a criminal case:


                                (A)      evidence of specific instances of a victim’s or
                                         witness’s sexual behavior, if offered to prove
                                         that someone other than the defendant was
                                         the source of semen, injury, or other physical
                                         evidence . . . .


       Evid. R. 412.


[13]   Here, Triplett argues that the trial court erred by excluding McGuire’s

       testimony that on one occasion, at some unspecified time, McGuire came home

       to find S.R. and a boy in her bedroom “and her bed was all messed up, and it

       smelled like sex.” Tr. Vol. III p. 219. McGuire testified that she was “not sure

       of the date” on which that incident occurred. Id. at 224. The trial court

       ultimately concluded that because McGuire was unable to provide a specific

       time frame for the evidence, it was inadmissible. Id. at 237-38.


[14]   As noted above, the purpose for which Triplett sought to introduce this

       evidence was to call into question the identity of the person who transmitted

       trichomoniasis to S.R. That is permissible under Rule 412 so long as the

       evidence relates to “specific instances” of S.R.’s behavior to prove that someone

       other than Triplett was the source of the sexually transmitted disease. Evid. R.

       Court of Appeals of Indiana | Memorandum Decision 48A02-1611-CR-2628 | July 12, 2017   Page 7 of 12
       412(b)(1)(A). But because McGuire was unable to provide a date on which the

       incident occurred—she was even unable to specify a particular year in which it

       happened—the evidence would not prove that anyone other than Triplett was

       the cause of the trichomoniasis. Because the evidence did not fall under an

       exception to Rule 412, the trial court properly concluded that it was

       inadmissible.


[15]   Even if the trial court had erred, however, Triplett testified as to the very same

       incident. Tr. Vol. IV p. 63-74. Indeed, Triplett went into even greater detail,

       testifying about two separate instances and two separate boys who may have

       transmitted the disease to S.R. Id. Consequently, McGuire’s testimony would

       have been merely cumulative of Triplett’s, and any error in the exclusion of that

       testimony would have been harmless. Johnson, 6 N.E.3d at 499. We decline to

       reverse on this basis.


           B. Expert Evidence Regarding Child Abuse Victims
[16]   Next, Triplett argues that the trial court erred by admitting Vernon’s testimony

       about the dynamics of child abuse, the disclosure process, and when and why a

       child may delay disclosure because the testimony “amounted to improper

       vouching on behalf of the victim and the prejudicial effect it had was far greater

       than the probative value.” Appellant’s Br. p. 19.


[17]   This Court has previously—and recently—found that precisely this type of

       general expert testimony about the dynamics of child abuse in the context of a

       child molestation case is admissible and helpful to the jury. E.g., Carter v. State,

       Court of Appeals of Indiana | Memorandum Decision 48A02-1611-CR-2628 | July 12, 2017   Page 8 of 12
31 N.E.3d 17, 29-30 (Ind. Ct. App. 2015), reh’g denied, trans. denied. In Carter,

the defendant was alleged to have molested one of his wife’s children. The

victim, M.N., was forensically interviewed by Patricia Smallwood, a forensic

interviewer and expert on child sexual abuse. At trial, the State presented

Smallwood’s testimony: “she did not testify about M.N. or his individual case,

instead offering generalized testimony about how children deal with sexual

abuse, the disclosure process, and the matter of when and why children recant

or retract their disclosures of abuse.” Id. at 29. On appeal, Carter argued that

the admission of this evidence was erroneous because it indirectly vouched for

the victim. This Court disagreed:

        Although Smallwood interviewed M.N., she never mentioned
        M.N. in her testimony or made any statement or opinion
        regarding the truth or falsity of M.N.’s allegations of molestation.
        Smallwood did not purport to have any opinion regarding the
        case at bar, nor did she refer to any specific facts at issue. Her
        testimony was broad, generalized, and included reference to
        results of research studies. In her testimony, she confirmed that a
        recantation could mean that no abuse had occurred. We note,
        and as the State reminds us, this court has permitted expert
        testimony explaining the behaviors and dynamics associated with
        domestic violence, including that associated with why a victim
        may recant. Otte v. State, 967 N.E.2d 540, 548 (Ind. Ct. App.
        2012), trans. denied. . . . We find that Smallwood’s testimony
        likewise provided information to the jury beyond that commonly
        understood by laypersons, and, under the circumstances before
        us, her expert testimony did not constitute impermissible
        vouching testimony.


Id.


Court of Appeals of Indiana | Memorandum Decision 48A02-1611-CR-2628 | July 12, 2017   Page 9 of 12
[18]   In this case, Vernon’s testimony was nearly identical to the expert testimony in

       Carter. Vernon’s testimony was broad and generalized, she never made any

       statement or professed an opinion regarding the truth or falsity of S.R.’s

       allegations, she did not purport to have any opinion regarding the case at bar,

       and she did not refer to any specific facts at issue. The one distinguishing

       characteristic between Smallwood and Vernon is that Vernon never interviewed

       S.R., which makes Vernon’s testimony even more general than Smallwood’s.

       Here, as in Carter, we find that the testimony was not improper vouching

       evidence and that it was relevant and helpful to the jury. Consequently, the

       trial court did not err by admitting Vernon’s testimony.


                                                 II. Sentencing
[19]   Finally, Triplett contends that the sentence imposed by the trial court is

       inappropriate in light of the nature of the offenses and his character.5 Indiana

       Appellate Rule 7(B) provides that this Court may revise a sentence if it is

       inappropriate in light of the nature of the offense and the character of the

       offender. We must “conduct [this] review with substantial deference and give

       ‘due consideration’ to the trial court’s decision—since the ‘principal role of

       [our] review is to attempt to leaven the outliers,’ and not to achieve a perceived

       ‘correct’ sentence . . . .” Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014)




       5
        While Triplett also recites the standard of review for errors in the sentencing process, such as consideration
       of improper aggravators, he makes no actual argument aside from a Rule 7(B) inappropriateness argument.
       Consequently, we will address only Rule 7(B).

       Court of Appeals of Indiana | Memorandum Decision 48A02-1611-CR-2628 | July 12, 2017              Page 10 of 12
       (quoting Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013)) (internal

       citations omitted).


[20]   Here, Triplett was convicted of three Level 1 felonies. For each conviction, he

       faced a term of twenty to fifty years imprisonment, with an advisory term of

       thirty years. Ind. Code § 35-50-2-4. The trial court imposed three consecutive

       thirty-five year terms, for an aggregate term of 105 years imprisonment, to be

       served consecutively to the 365-day term imposed for Triplett’s probation

       violation in another case.


[21]   With respect to the nature of Triplett’s offenses, he forced a twelve- to thirteen-

       year-old girl to have sex with him five to six times; his two-year-old daughter

       was present in the home each time and even walked into the room during one

       of the instances of intercourse. He told S.R. not to tell anyone. One to two

       weeks after Triplett first forced S.R. to have sex, she began displaying the

       symptoms of trichomoniasis. As a result of Triplett’s actions, S.R. has

       contracted a sexually transmitted disease, begun cutting herself, demonstrated

       dramatic changes in behavior, personality, and grades in school, and has been

       sent to an inpatient treatment facility on at least one occasion. She continues to

       participate in intensive therapy. We do not find that the nature of the offenses

       aids Triplett’s argument.


[22]   With respect to Triplett’s character, the record reveals that he manipulated

       McGuire into getting more parenting time with S.R. so that he could have

       greater access to the girl. He has continued to refuse to take responsibility for


       Court of Appeals of Indiana | Memorandum Decision 48A02-1611-CR-2628 | July 12, 2017   Page 11 of 12
       his actions and has never expressed remorse, instead blaming S.R. and her

       family for his actions. With respect to Triplett’s criminal history, he has had

       nearly continuous contacts with the criminal justice system since 1989. His

       record shows frequent arrests for offenses such as battery, resisting law

       enforcement, disorderly conduct, and public intoxication. He has been

       convicted of disorderly conduct at least twice, operating a vehicle without

       financial responsibility, operating a motor vehicle without ever receiving a

       license, driving while suspended at least five times, theft, operating while

       intoxicated while endangering a person, and possession of cocaine or

       methamphetamine. He has failed to complete community service and has

       violated probation on at least four occasions. He was on probation for

       possession of cocaine or methamphetamine when he committed the offenses at

       issue in this case. In sum, Triplett shows an inability or unwillingness to

       comply with the rule of law and shows no concern for the well-being of his

       fellow citizens or, most crucially, the young victim of his crimes in this case.

       We do not find the sentence imposed by the trial court to be inappropriate in

       light of the nature of the offenses or Triplett’s character.


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


       Barnes, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 48A02-1611-CR-2628 | July 12, 2017   Page 12 of 12
