MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                         FILED
regarded as precedent or cited before any                           Dec 18 2018, 10:27 am

court except for the purpose of establishing                             CLERK
                                                                     Indiana Supreme Court
the defense of res judicata, collateral                                 Court of Appeals
                                                                          and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
David E. Mosley                                         Curtis T. Hill, Jr.
Jeffersonville, Indiana                                 Attorney General of Indiana

                                                        Jesse R. Drum
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Dennis L. Zollman,                                      December 18, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        31A01-1711-CR-2646
        v.                                              Appeal from the Harrison Superior
                                                        Court
State of Indiana,                                       The Honorable Joseph L.
Appellee-Plaintiff.                                     Claypool, Judge
                                                        Trial Court Cause No.
                                                        31D01-1612-FA-858



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 31A01-1711-CR-2646 | December 18, 2018     Page 1 of 6
                                       Statement of the Case
[1]   Dennis L. Zollman appeals his convictions for twelve counts of child molesting,

      each as a Class A felony, and four counts of child exploitation, two of which

      were Class C felonies and two of which were Level 5 felonies. Zollman raises

      five issues for our review, which we restate as the following two issues:


              1.      Whether Zollman’s arguments of fundamental error in the
                      admission of certain evidence or the instruction of the jury
                      are available on appeal.


              2.      Whether one of Zollman’s convictions for child
                      exploitation, as a Class C felony, violates Indiana’s
                      prohibitions against double jeopardy.


[2]   We affirm in part, reverse in part, and remand with instructions.


                                 Facts and Procedural History
[3]   On July 18, 2017, the State filed an amended information against Zollman in

      which the State alleged that he had committed twelve counts of child molesting

      and four counts of child exploitation against minor girl L.B. At the ensuing

      jury trial, L.B. testified to at least sixteen unique acts of oral sex, attempted anal

      sex, and various acts of fondling that Zollman had performed on her or had

      made her perform on him. See Tr. Vol. 4 at 33-70. She was also clear that those

      specific instances were not inclusive and that numerous other acts of

      molestation had occurred, though she could not remember their exact details.

      During some of those acts, Zollman displayed pornography to L.B. or took

      illicit photographs of L.B.
      Court of Appeals of Indiana | Memorandum Decision 31A01-1711-CR-2646 | December 18, 2018   Page 2 of 6
[4]   During the course of the trial, the State sought to admit two recorded forensic

      interviews of L.B. Zollman informed the court that he had “no objection” to

      the admission of either interview. Tr. Vol. 2 at 166, 236. The State also sought

      to admit pornography seized from Zollman’s residence and cell phone.

      Zollman again informed the court that he had “[n]o objection” to the admission

      of that evidence. Tr. Vol. 3 at 140, 177, 223-24.


[5]   During the prosecutor’s closing argument, he informed the jury that, as to

      Counts 13 and 14, the two Class C felony child exploitation allegations, only

      one could be a viable conviction. In particular, the prosecutor noted that both

      of those counts were based on a single photograph, but it was not clear whether

      the photograph was of L.B. or of a third party. As such, the prosecutor

      informed the jurors that, “[i]f you believe that . . . that is a photo of [L.B.] . . . , I

      ask you to find [Zollman] guilty on Count 13 . . . . [However,] if you don’t

      believe that to be a photo of [L.B.]” but instead of “some other poor girl,

      I . . . ask you to find [Zollman] guilty of Count 14 . . . .” Tr. Vol. 5 at 51.


[6]   The trial court then instructed the jury. As to the twelve counts of child

      molesting, the court accepted Zollman’s proffered final instructions and

      tendered them to the jury. The jury then found Zollman guilty on all counts,

      and the trial court entered its judgment of conviction on all counts and

      sentenced Zollman to an aggregate term of eighty-eight years. This appeal

      ensued.




      Court of Appeals of Indiana | Memorandum Decision 31A01-1711-CR-2646 | December 18, 2018   Page 3 of 6
                                     Discussion and Decision
                                     Issue One: Fundamental Error

[7]   We first address Zollman’s arguments on appeal that the trial court committed

      fundamental error when it admitted into evidence the two recorded forensic

      interviews, when it admitted into evidence pornography seized from Zollman’s

      residence and cell phone, and when the court instructed the jury. To show

      fundamental error on appeal, Zollman must “‘show that the trial court should

      have raised the issue sua sponte due to a blatant violation of basic and

      elementary principles, undeniable harm or potential for harm, and prejudice

      that makes a fair trial impossible.’” Taylor v. State, 86 N.E.3d 157, 162 (Ind.

      2017) (quoting Harris v. State, 76 N.E.3d 137, 140 (Ind. 2017)). “A ‘finding of

      fundamental error essentially means that the trial judge erred . . . by not acting

      when he or she should have,’ even without being spurred to action by a timely

      objection.” Brewington v. State, 7 N.E.3d 946, 974 (Ind. 2014) (quoting Whiting

      v. State, 969 N.E.2d 24, 34 (Ind. 2012) (omission original to Brewington).


[8]   However, the invited error doctrine forbids a party from taking advantage of an

      error that he “commits, invites, or which is the natural consequence of [his]

      own neglect or misconduct.” Id. at 975. Invited error is not fundamental error

      and generally is not subject to appellate review. See Cole v. State, 28 N.E.3d

      1126, 1136 (Ind. Ct. App. 2015) (quoting Kingery v. State, 659 N.E.2d 490, 494

      (Ind. 1995)). When a defendant affirmatively states that he has “no objection”

      to proffered evidence, he invites any error in its admission. Halliburton v. State,

      1 N.E.3d 670, 678-79 (Ind. 2013).

      Court of Appeals of Indiana | Memorandum Decision 31A01-1711-CR-2646 | December 18, 2018   Page 4 of 6
[9]    Here, as shown above, Zollman repeatedly informed the trial court that he had

       no objection to the now-complained-of evidence.1 Further, the jury instructions

       he now complains of were his own. Thus, he invited any error on these issues,

       and we will not consider them on appeal.2 Cole, 28 N.E.3d at 1136.


                                          Issue Two: Double Jeopardy

[10]   Zollman next asserts that his convictions for child exploitation violate Indiana’s

       prohibitions against double jeopardy. We agree with respect to Counts 13 and

       14. The prosecutor plainly charged those two Counts in the alternative based

       only on State’s Exhibit 25, a point the State properly concedes on appeal. Tr.

       Vol. 5 at 51. As that photograph could not support both Count 13 and Count

       14, we reverse Zollman’s conviction for child exploitation, as a Class C felony,

       as charged in Count 14. See, e.g., Bradley v. State, ___ N.E.3d ___, No. 87A01-

       1711-CR-2584, 2018 WL 5578874, at *5-7 (Ind. Ct. App. Oct. 30, 2018), not yet

       certified. We remand with instructions for the trial court to vacate the

       conviction and sentence for Count 14 and to resentence Zollman accordingly.




       1
          In his brief, Zollman includes an extended excerpt of witness testimony as it relates to the pornography
       evidence, which the State responds to on appeal. However, we conclude that this excerpt is not a
       freestanding claim of error but an attempt by Zollman to demonstrate prejudice from the admission of the
       pornography. Further, we agree with the State that Zollman’s apparent assertions of error in the trial court’s
       denial of his motion for a directed verdict is not supported by cogent reasoning, and we do not consider it.
       See Ind. Appellate Rule 46(A)(8)(a).
       2
         We may consider an invited error when “the interests of justice” require it. Durden v. State, 99 N.E.3d 645,
       656 (Ind. 2018). Zollman does not argue on appeal that that exception applies, and the record would not
       support such an argument.

       Court of Appeals of Indiana | Memorandum Decision 31A01-1711-CR-2646 | December 18, 2018            Page 5 of 6
[11]   However, Zollman argues that his remaining child exploitation convictions

       were also each based on State’s Exhibit 25. Zollman is plainly incorrect; State’s

       Exhibits 25, 26, and 27 were each a different illicit photograph of a minor girl,

       and each photograph established an independent basis for each of Zollman’s

       valid child exploitation convictions.


[12]   In sum, we do not address Zollman’s claims of fundamental error, and we

       affirm all of his convictions except his conviction on Count 14. We reverse his

       conviction on that Count and remand with instructions for the trial court to

       vacate that conviction and to resentence Zollman accordingly.


[13]   Affirmed in part, reversed in part, and remanded with instructions.


       Crone, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 31A01-1711-CR-2646 | December 18, 2018   Page 6 of 6
