                                                                    Oct 08 2015, 8:32 am




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Marielena Duerring                                         Gregory F. Zoeller
South Bend, Indiana                                        Attorney General of Indiana
                                                           Angela N. Sanchez
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

Robert E. Quinn,                                          October 8, 2015

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          20A03-1503-CR-82
        v.                                                Appeal from the Elkhart Superior
                                                          Court.
                                                          The Honorable George W.
State of Indiana,                                         Biddlecome, Judge.
Appellee-Plaintiff.                                       Cause No. 20D03-1303-FA-14




Barteau, Senior Judge




Court of Appeals of Indiana | Opinion 20A03-1503-CR-82 | October 8, 2015                   Page 1 of 14
                                          Statement of the Case
                                                                                         1
[1]   Robert E. Quinn appeals his convictions of child molesting, a Class B felony,
                                                                 2
      and criminal confinement, a Class B felony. We affirm.


                                                       Issue
[2]   Quinn has preserved one issue for appellate review: whether the charges of

      child molesting and criminal confinement are barred by the statute of

      limitations.


                                   Facts and Procedural History
[3]   On the night of March 5, 1988, ten-year-old E.F. was asleep on a couch in the

      living room of her family’s house in Elkhart County. E.F.’s parents were not at

      home, and E.F.’s brother was asleep in another room. Suddenly, Quinn forced

      open the front door, damaging the door frame, and entered the house. As E.F.

      awoke, he covered her head with a coat, picked her up, and carried her outside.

      Quinn got into his car with E.F. and drove away, holding her in a headlock.


[4]   Later, Quinn stopped the car. E.F. could not see where she was or the face of

      her kidnapper because the coat was covering her face. Quinn put her on her

      back on the driver’s side of the front seat. E.F. cried and tried to remove the

      coat. Quinn punched her in the face, told her to quit crying, and threatened to




      1
          Ind. Code § 35-42-4-3 (1981).
      2
          Ind. Code § 35-42-3-3 (1985).


      Court of Appeals of Indiana | Opinion 20A03-1503-CR-82 | October 8, 2015   Page 2 of 14
      kill her and her family “with a knife” if she kept crying or told anyone about the

      abduction. Tr. p. 298.


[5]   Quinn pushed E.F.’s nightgown up to her shoulders and rubbed her chest. He

      removed her underpants and unsuccessfully attempted to insert his penis in her

      vagina, inflicting intense pain on E.F. Next, E.F. felt Quinn smearing a

      substance on and inside of her vagina with his fingers. It burned. She asked

      him what the substance was, and Quinn said it was Vaseline.


[6]   After applying the Vaseline, Quinn inserted his penis into E.F.’s vagina. The

      pain caused E.F. to pass out for a short time. At one point she gripped the

      steering wheel and tried to pull away, but Quinn held her in place. Quinn

      inserted his penis in her vagina a second time, and she passed out again.

      Eventually, Quinn moved E.F. back to the passenger side of the front seat and

      told her to keep the coat on her head. He started the car and began driving.

      E.F. found her underwear and put it back on.


[7]   Quinn stopped at a video rental store next to E.F.’s house and told her to get

      out. She got out as fast as she could and went inside her house. E.F. saw blood

      in her underwear and used toilet paper and a washcloth to try to clean up. She

      was still in pain. After E.F. cleaned up as best she could, she hid the washcloth

      behind the toilet. Next, she sat on her bed. E.F. remembered Quinn’s threat to

      kill her family if she told anyone. She did not wake her brother.


[8]   When E.F.’s parents returned home at two or three in the morning, they saw

      that the front door had been broken open. E.F.’s mother found E.F. sitting in

      Court of Appeals of Indiana | Opinion 20A03-1503-CR-82 | October 8, 2015   Page 3 of 14
       bed. E.F., who was afraid that her mother would be angry, told her mother

       that she had started her period. E.F.’s mother continued questioning her and

       told E.F.’s father to call the police.


[9]    Detective Gary Kenawell of the Elkhart County Sheriff’s Department was

       dispatched to E.F.’s house. By the time he arrived, E.F. had already been taken

       to the hospital. Several other officers were present at the house and had

       collected E.F.’s nightgown and underwear, as well as the toilet paper and the

       washcloth she had used to clean up. The officers stored the items in bags, to

       which they affixed evidence tags that stated a case number, the date, the

       collecting officers’ names, the house address, and a description of the contents.


[10]   At the hospital, a doctor examined E.F.’s injuries and performed a sexual

       assault examination. Police officers collected the sexual assault evidence kit,

       which was marked as State’s Exhibit 8 at trial. Doctors later performed surgery

       on E.F. to repair severe vaginal lacerations caused by Quinn’s attack.


[11]   Detective Kenawell went to the hospital, where he questioned E.F.’s father and

       brother. At his request, they went to the sheriff’s department, where they gave

       formal statements. He later questioned E.F. while she was still hospitalized,

       but she was unable to describe her attacker. At that time, Quinn was a stranger

       to E.F.’s family, but it was discovered years later that he and E.F.’s family had

       lived in the same neighborhood.


[12]   Detective Kenawell and other officers canvassed houses and businesses near

       E.F.’s house to find out if anyone had seen anything, but their questioning did

       Court of Appeals of Indiana | Opinion 20A03-1503-CR-82 | October 8, 2015   Page 4 of 14
       not yield any results. Another officer told Detective Kenawell to consider

       Quinn as a suspect. The record does not disclose the reasons for the officer’s

       suspicion, but Detective Kenawell’s investigation did not tie Quinn or any other

       person to E.F.’s kidnapping and rape.


[13]   E.F. and her family members regularly spoke with the police for several

       months, but the investigation was hampered by a lack of leads. In July 1988,

       the sheriff’s department put the case in inactive status, meaning that no further

       investigation would be undertaken absent new information. In October 1988,

       E.F.’s father called the police with information about a possible suspect, but the

       lead did not pan out. E.F.’s father periodically called the police over the next

       several years, requesting status updates.


[14]   Meanwhile, an officer had delivered the sexual assault evidence kit, two pairs of

       E.F.’s underpants, her nightgown, the washcloth, and the toilet tissue to the

       Indiana State Police Laboratory (the Lab) on March 10, 1988. At that time, the

       Lab used “ABO typing” to test blood samples. Id. at 161. It was an accurate

       but rudimentary analysis that could only exclude a suspect from a blood sample

       rather than identifying the suspect as the definitive source. Blood testing

       revealed that the underpants, washcloth, and nightgown contained blood that

       was consistent with E.F.’s blood standard, but no further information could be

       obtained. Several pieces of evidence had seminal fluid or spermatozoa on

       them, but at that time the Lab had no testing procedures that could link those

       substances with a specific person.



       Court of Appeals of Indiana | Opinion 20A03-1503-CR-82 | October 8, 2015   Page 5 of 14
[15]   In 1988, the Lab’s policy was to take clippings known as sub-items from pieces

       of evidence and test the sub-items rather than the entirety of each item. The

       Lab returned each item, minus the portion that was removed to create the sub-

       item, to the appropriate law enforcement agency. The Lab still makes use of

       sub-items today. Currently, the Lab has a practice of keeping sub-items “in

       perpetuity.” Id. at 180. In the 1980s, the Lab had no formal retention policy,

       but an analyst could retain and store a sub-item if he or she wanted.


[16]   Prior to 2000, the Elkhart County Sheriff’s Department destroyed the evidence

       in its possession that was related to this case. Kim Epperson, the Lab analyst

       who performed the blood testing in 1988, chose to store the sub-items. They

       remained in storage at the Lab’s Indianapolis vault over several decades.


[17]   In the early to mid-1990s, the Lab began to use DNA analysis. Over the years,

       the Lab adopted more advanced DNA analytical methods as they became

       available. The newer methods are better able to tie specific individuals’ DNA

       profiles to DNA profiles of unknown individuals found on pieces of evidence.

       In 1998 or 1999, the Combined DNA Index System, or CODIS, was put into

       service. CODIS is a nationwide DNA database and has sub-databases for each

       state. DNA profiles are stored in CODIS, and law enforcement agencies can

       compare DNA profiles generated from pieces of evidence against the DNA

       profiles in CODIS to find a match. Indiana began submitting DNA profiles to

       CODIS in 2000.




       Court of Appeals of Indiana | Opinion 20A03-1503-CR-82 | October 8, 2015   Page 6 of 14
[18]   The Elkhart County Sheriff’s Department does not have a policy for reopening

       inactive cases. On occasion, detectives ask forensic specialists to look at older

       cases to see if there is any evidence that can be submitted for DNA testing, but

       there is no formal system or schedule. Similarly, the Lab does not have a

       formal procedure for testing older sub-items from the vault. Due to the sheer

       volume of evidence, the Lab acts only in response to requests from law

       enforcement agencies. It can take at least a week for an analyst to create a

       DNA profile from one sample, and there are “thousands and thousands of old

       case samples” in the Lab’s vaults. Id. at 229.


[19]   In September 2011, E.F. contacted Elkhart County officials about her case,

       looking for medical information. She was put in touch with Kenawell, who

       had retired from the sheriff’s department and was an investigator for the

       prosecutor’s office. Kenawell remembered E.F. and agreed to look into her

       case.


[20]   Kenawell contacted an acquaintance at the Lab to see if the Lab still had any of

       the evidence from E.F.’s case. Lab personnel checked the vault and found the

       sub-items that Epperson had retained and placed in storage over two decades

       ago. In June 2012, Forensic Scientist Maranda Michael tested the sub-items

       and generated a DNA profile of an unknown male based on sperm fractions

       found on a sub-item that was part of the washcloth. Another Lab employee

       uploaded the DNA profile to CODIS and found a match with Quinn, whose

       DNA profile was already on CODIS.



       Court of Appeals of Indiana | Opinion 20A03-1503-CR-82 | October 8, 2015   Page 7 of 14
[21]   In November 2012, the police sought and obtained a search warrant for a

       buccal swab from Quinn. The swab was submitted to the lab for testing in

       January 2013. In February 2013, Forensic Scientist Michael compared the

       profile generated from the buccal swab to the profile generated from the sub-

       items and determined that Quinn was the source of the sperm fractions found

       on sub-items that had been parts of the washcloth, the nightgown, and one pair

       of underpants.


[22]   On March 5, 2013, the State charged Quinn with child molesting, criminal

       confinement, and rape, a Class A felony. Quinn pleaded guilty to rape but

       moved to dismiss the remaining two charges, contending that they were barred

       by the statute of limitations. The trial court denied Quinn’s motion and held a

       bench trial on those two charges. The court determined that Quinn was guilty

       and sentenced him accordingly. This appeal followed.


                                     Discussion and Decision
[23]   Quinn presents constitutional and statutory challenges to his convictions of

       child molesting and rape, but only the statutory claim has been preserved for

       appellate review.


[24]   At the time that the State charged Quinn, Indiana Code section 35-41-4-2

       (2009) provided, in relevant part:

               (a) Except as otherwise provided in this section, a prosecution for
               an offense is barred unless it is commenced:



       Court of Appeals of Indiana | Opinion 20A03-1503-CR-82 | October 8, 2015   Page 8 of 14
               (1) within five (5) years after the commission of the offense, in
               the case of a Class B, Class C, or Class D felony; or
               (2) within two (2) years after the commission of the offense, in
               the case of a misdemeanor.
               (b) A prosecution for a Class B or Class C felony that would
               otherwise be barred under this section may be commenced within
               one (1) year after the earlier of the date on which the state:
               (1) first discovers evidence sufficient to charge the offender with
               the offense through DNA (deoxyribonucleic acid) analysis; or
               (2) could have discovered evidence sufficient to charge the
               offender with the offense through DNA (deoxyribonucleic acid)
               analysis by the exercise of due diligence.
               (c) A prosecution for a Class A felony may be commenced at any
               time.


[25]   Quinn argues that Indiana Code section 35-41-4-2(b)’s DNA extension to the

       statute of limitations violates federal and state constitutional prohibitions of ex

       post facto laws. Quinn did not present his ex post facto constitutional claims to

       the trial court. Instead, when Quinn moved to dismiss the charges of child

       molesting and criminal confinement, he alleged only that the State violated the

       statute of limitations. He did not present ex post facto claims at the evidentiary

       hearing on the motion to dismiss. Thus, he has procedurally defaulted his ex

       post facto claims for appellate review. See Saunders v. State, 848 N.E.2d 1117,

       1122 (Ind. Ct. App. 2006) (constitutional claim waived for appellate review;

       defendant had presented a different claim to the trial court), trans. denied.


[26]   Waiver notwithstanding, the DNA extension to the statute of limitations does

       not impose a punishment for an act that was not punishable at the time, nor

       Court of Appeals of Indiana | Opinion 20A03-1503-CR-82 | October 8, 2015      Page 9 of 14
       does it impose an additional punishment to that which was then prescribed.

       The DNA extension does not violate federal or state constitutional prohibitions

       of ex post facto laws. See Minton v. State, 802 N.E.2d 929, 934 (Ind. Ct. App.

       2004) (statute extending the limitations period for the crime of child molesting

       was not an unconstitutional ex post facto law), trans. denied.


[27]   Next, Quinn argues that the State failed to act with due diligence in discovering

       the DNA evidence that led the State to charge him with child molesting and

       criminal confinement. He concludes that the State failed to comply with

       Indiana Code section 35-41-4-2(b), and those charges should be dismissed.


[28]   Our standard of review for the interpretation of statutes is de novo. Wright v.

       State, 772 N.E.2d 449, 454 (Ind. Ct. App. 2002). We review legal

       determinations to ascertain whether the trial court erred in application of the

       law. Id. Exceptions to statutes of limitations must be construed narrowly and

       in a light most favorable to the accused. Sloan v. State, 947 N.E.2d 917, 922

       (Ind. 2011). When a statute is clear and unambiguous, we need not apply any

       rules of construction other than giving effect to the plain and ordinary meaning

       of the language. Id.


[29]   We have not found any cases that define the circumstances under which the

       State may or may not be said to have acted with due diligence for purposes of

       Indiana Code section 35-41-4-2(b), and the parties have not directed us to any




       Court of Appeals of Indiana | Opinion 20A03-1503-CR-82 | October 8, 2015   Page 10 of 14
                           3
       cases on point. The State analogizes this statutory requirement of due

       diligence to the use of that term in the context of newly-discovered evidence

       submitted by petitioners in post-conviction relief proceedings. That context is

       not comparable to this case, where the State bears the burden of proof beyond a

       reasonable doubt and exceptions to statutes of limitations must be construed

       narrowly.


[30]   Due diligence is defined as: “The diligence reasonably expected from, and

       ordinarily exercised by, a person who seeks to satisfy a legal requirement or to

       discharge an obligation.” Black’s Law Dictionary 553 (Tenth Ed. 2014).


[31]   Quinn notes that the State has had the sub-items since 1988, and the State took

       his DNA through buccal swabs in 2001 and 2003 in relation to other criminal

       cases. He contends that there is no reason why the State could not have created

       a DNA profile from the sub-items and uploaded it to CODIS years ago, thereby

       discovering Quinn’s identity much sooner. He concludes that the State’s delay

       was unreasonable.




       3
        Quinn cites Marshall v. State, 832 N.E.2d 615 (Ind. Ct. App. 2005), trans. denied. That case is distinguishable
       because it did not address due diligence. Instead, a panel of the Court determined that Indiana Code section
       35-41-4-2(b) did not apply because the State had discovered the defendant’s identity using non-DNA
       evidence over a year before receiving the results of DNA testing.
       A federal case from Indiana, United States v. Hagler, 700 F.3d 1091 (7th Cir. 2012), addressed the
       circumstances under which DNA evidence can toll the statute of limitations. However, that case addressed a
       federal statute that does not impose upon the prosecution a requirement of due diligence in locating and
       analyzing DNA evidence.

       Court of Appeals of Indiana | Opinion 20A03-1503-CR-82 | October 8, 2015                          Page 11 of 14
[32]   The key inquiry for due diligence is whether the State’s efforts to identify Quinn

       through DNA testing were reasonable under the circumstances. Here, although

       the State possessed sub-items containing Quinn’s DNA in 1988, the sub-items’

       continued existence was a matter of happenstance because the State’s Lab had

       no policy requiring retention of the sub-items when they were created.

       Retention of sub-items was left to the discretion of individual analysts, and

       many chose not to keep sub-items. Tr. p. 184 (“In the early days, before DNA

       analysis, they didn’t even think that they needed to retain sub-items.”). The

       Elkhart County Sheriff’s Office had destroyed the evidence in its possession

       prior to 2000.


[33]   The evidence also demonstrates that the Lab does not have the resources to

       proactively examine every sub-item in its vault to see if a DNA profile can be

       created. There are thousands of sub-items in the Lab’s vault, and given staffing

       realities, Lab personnel act in response to requests from law enforcement

       agencies.


[34]   In addition, the Elkhart County Sheriff’s Department does not have the

       resources to leave every case open and routinely investigate them all. Instead,

       the Department places cases on inactive status once all avenues of investigation

       have been exhausted, subject to reactivating them when new information comes

       in. Although the Department’s employees occasionally look at inactive cases,

       there is no formal policy or set schedule for such reexaminations.




       Court of Appeals of Indiana | Opinion 20A03-1503-CR-82 | October 8, 2015   Page 12 of 14
[35]   When E.F. called Elkhart County officials for information about her case, she

       was by chance connected with Kenawell, one of the original detectives in the

       case, who had since retired and was working for a different agency. Kenawell

       happened to have a contact at the Lab who was able to begin the search for the

       sub-items. If E.F. had contacted county officials five or ten years earlier, the

       same connections may have been made and may have led to the same

       investigative outcome, but perhaps not. The possibility that different policies or

       investigation techniques could have led to Quinn’s identification years earlier

       does not compel a conclusion that the State acted unreasonably here.


[36]   Quinn does not dispute that, once Kenawell and the Lab’s employees

       determined that the sub-items still existed, they acted diligently in performing

       the testing and further investigation necessary to connect the DNA on the sub-

       items with Quinn.


[37]   Under the facts and circumstances of this case, the State’s employees acted

       reasonably in the manner in which they maintained, discovered, and tested the

       DNA evidence that led to Quinn’s convictions, thereby establishing the due

       diligence requirement of Indiana Code section 35-41-4-2(b). Quinn’s request to

       vacate his child molesting and confinement convictions must fail.


                                                  Conclusion
[38]   For the foregoing reasons, we affirm the judgment of the trial court.


[39]   Affirmed.


       Court of Appeals of Indiana | Opinion 20A03-1503-CR-82 | October 8, 2015   Page 13 of 14
Barnes, J., and Bradford, J., concur.




Court of Appeals of Indiana | Opinion 20A03-1503-CR-82 | October 8, 2015   Page 14 of 14
