MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                FILED
regarded as precedent or cited before any                        Jul 20 2017, 8:53 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
Jeffrey D. McClarnon                                     Curtis T. Hill, Jr.
Greenfield, Indiana                                      Attorney General of Indiana

                                                         Eric P. Babbs
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Robert Francisco Celio,                                  July 20, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         30A05-1609-CR-2124
        v.                                               Appeal from the Hancock Circuit
                                                         Court
State of Indiana,                                        The Honorable Richard D. Culver,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         30C01-1510-FA-1513



Altice, Judge.


                                          Case Summary


Court of Appeals of Indiana | Memorandum Decision 30A05-1609-CR-2124 | July 20, 2017     Page 1 of 6
[1]   Robert Celio appeals following his convictions for Class A felony child

      molesting, Class A felony criminal deviate conduct, Class B felony incest, Class

      C felony child molesting, and Class C felony intimidation. On appeal, Celio

      argues that the trial court abused its discretion in excluding evidence pursuant

      to Ind. Evidence Rule 412, commonly referred to as the Rape Shield Rule.


[2]   We affirm.


                                       Facts & Procedural History


[3]   Celio met his biological daughter, L.D., in 2006, when L.D. was approximately

      six years old. After Celio’s paternity was established through genetic testing,

      Celio rekindled his relationship with L.D.’s biological mother and moved in

      with the family. Shortly thereafter, Celio began to sexually abuse L.D. These

      incidents involved Celio penetrating L.D.’s vagina with his finger and his penis

      and penetrating her anus with his penis. On one occasion, Celio choked L.D.

      and beat her with a belt before vaginally and anally penetrating her. On

      another occasion, Celio held a knife to L.D.’s throat. On yet another occasion,

      Celio held a gun to L.D.’s head after the assault and threatened to hurt her and

      her mother if she told anyone what he had done. L.D. did not tell anyone

      about the abuse because she was afraid.


[4]   Eventually, Celio’s and L.D.’s biological mother’s parental rights to L.D. were

      terminated for reasons unrelated to the sexual abuse. L.D. was adopted in

      2012, and nearly two years later, L.D. finally disclosed the abuse to her

      adoptive parents. L.D.’s adoptive parents contacted the Department of Child

      Court of Appeals of Indiana | Memorandum Decision 30A05-1609-CR-2124 | July 20, 2017   Page 2 of 6
      Services and an investigation ensued, as a result of which Celio was charged

      with the offenses set forth above. A two-day jury trial commenced on July 12,

      2016, at the conclusion of which Celio was found guilty as charged. On August

      18, 2016, the trial court sentenced Celio to an aggregate term of fifty years in

      the Department of Correction. Celio now appeals.


                                             Discussion & Decision


[5]   Celio argues that the trial court abused its discretion in excluding evidence that

      L.D. had been molested by other individuals.1 Trial courts are afforded wide

      discretion in ruling on the admissibility of evidence, and our review of such

      decisions is limited to determining whether the court abused that discretion.

      Beasley v. State, 46 N.E.3d 1232, 1235 (Ind. 2016). An abuse of discretion

      occurs when the trial court’s decision is clearly against the logic and effect of

      the facts and circumstances and the error affects a party’s substantial rights. Id.

      In considering whether a trial court has abused its discretion in the admission or

      exclusion of evidence, we do not reweigh the evidence. Id. We consider only

      the evidence favorable to the ruling and any unrefuted evidence favorable to the

      defendant. Id.




      1
        Celio’s brief does not contain a single citation to the record. See Ind. Appellate Rule 22(C) (providing that
      factual contentions shall be supported by citation to the record); Ind. App. R. 46(A)(5), (6), and (8) (providing
      that an appellant’s brief must contain citations to the record in accordance with Ind. App. R. 22(C)). To
      avoid waiver in the future, we remind counsel to provide citations to the record as required by the Appellate
      Rules.

      Court of Appeals of Indiana | Memorandum Decision 30A05-1609-CR-2124 | July 20, 2017                 Page 3 of 6
[6]   The Rape Shield Rule provides in relevant part 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


                       (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;


                               (B) evidence of specific instances of a victim’s or
                               witness’s sexual behavior with respect to the person
                               accused of the sexual misconduct, if offered by the
                               defendant to prove consent or if offered by the
                               prosecutor; and


                               (C) evidence whose exclusion would violate the
                               defendant’s constitutional rights.




      Court of Appeals of Indiana | Memorandum Decision 30A05-1609-CR-2124 | July 20, 2017   Page 4 of 6
      Ind. R. Evid. 412.2 The evidence Celio sought to introduce—that L.D. had

      been molested by other men—clearly falls within the category of evidence that

      the Rape Shield Rule generally prohibits.3 See Oatts v. State, 899 N.E.2d 714,

      721 (Ind. Ct. App. 2009). It is also undisputed that the excluded evidence does

      not fall within the exceptions set forth in Evid. R. 412(b)(1)(A) or (B). Thus,

      the question before us is whether the excluded evidence falls within Evid. R.

      412(b)(1)(C), that is, whether the exclusion of the evidence violated Celio’s

      constitutional rights.


[7]   Celio argues that the exclusion of evidence that L.D. had been molested by

      three other men violated his Sixth Amendment right to cross-examine

      witnesses. As this court has noted, the right to cross examination is not

      absolute, and that right may bow in appropriate cases to accommodate other

      legitimate interests in the criminal trial process. Oatts, 899 N.E.2d at 722.

      There are, however, instances in which the application of the Rape Shield Rule

      may violate a defendant’s Sixth Amendment rights. Id. As is relevant here,

      “the Sixth Amendment may be implicated when a defendant establishes that




      2
       Our Supreme Court has noted that the Rape Shield Rule incorporates the basic principles of Ind. Code § 35-
      37-4-4. State v. Walton, 715 N.E.2d 824, 826 (Ind. 1999). To the extent there are any differences between the
      two, the Rape Shield Rule controls. Id. at 826 n.5.
      3
       Celio makes a brief argument that “the prohibited evidence would not necessarily be of prior sexual
      activity” because it is unclear whether the other alleged molestations occurred before or after the molestations
      of which Celio was convicted. The Rape Shield Rule prohibits the introduction of evidence “that a victim or
      witness engaged in other sexual behavior[.]” Evid. R. 412(a)(1). It is irrelevant whether that behavior
      occurred before or after the charged acts. See Pribie v. State, 46 N.E.3d 1241, 1247 (Ind. Ct. App. 2015), trans.
      denied.

      Court of Appeals of Indiana | Memorandum Decision 30A05-1609-CR-2124 | July 20, 2017                 Page 5 of 6
       the victim engaged in a similar pattern of sexual acts.” Id. (quoting Williams v.

       State, 691 N.E.2d 195, 201 (Ind. 1997)).


[8]    Celio argues that questioning L.D. regarding her other molestations would have

       allowed the jury to infer that some of the actions L.D. attributed to Celio were

       actually attributable to the other perpetrators. Celio makes a number of

       conclusory assertions that there were similarities between L.D.’s allegations

       against Celio and her allegations against the other perpetrators, but he has

       provided no citation to the record to support those claims. Furthermore, our

       review of the record has revealed no such similarities. In fact, the record before

       us contains no specific facts concerning L.D.’s molestation by other men.

       Without sufficient facts showing a similarity between L.D.’s allegations against

       Celio and her allegations against other perpetrators, Celio’s argument must fail.

       See Oatts, 899 N.E.2d at 725 (rejecting a similar argument because the defendant

       “did not offer specific details of the previous molestation and thus failed to

       show that the prior molestation was similar to the current offense”).


[9]    Judgment affirmed.


[10]   Kirsch, J. and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 30A05-1609-CR-2124 | July 20, 2017   Page 6 of 6
