Adkins v. State, Court of Appeals Case No. 18A04-1711-CR-2643

Docket NºCourt of Appeals Case No. 18A04-1711-CR-2643
Citation111 N.E.3d 258
Case DateSeptember 07, 2018
CourtCourt of Appeals of Indiana

111 N.E.3d 258 (Table)

Robert J. ADKINS, Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff.

Court of Appeals Case No. 18A04-1711-CR-2643

Court of Appeals of Indiana.

FILED September 7, 2018


Attorney for Appellant: Michael P. Quirk, Quirk & Hunter, P.C., Muncie, Indiana

Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Ian McLean, Supervising Deputy Attorney General, Indianapolis, Indiana

MEMORANDUM DECISION

Mathias, Judge.

[1] Following a jury trial in Delaware Circuit Court, Robert J. Adkins ("Adkins") was convicted of two counts of Class A felony child molesting and one count of Class D felony disseminating matter harmful to minors. The trial court sentenced Adkins to an aggregate term of forty-two years of incarceration. Adkins appeals and presents three issues, which we restate as:

I. Whether the trial court erred by permitting the prosecuting attorney to refer to Adkins's taped statement to the police, in which he admitted to molesting the victim, as a confession;

II. Whether the trial court erred by not declaring a mistrial because a portion of Adkins's taped statement to the police contained a reference to a polygraph examination; and

III. Whether the trial court erred by permitting the State to amend the information charging Adkins with dissemination of matter harmful to minors during trial.

[2] We affirm.

Facts and Procedural History

[3] At the time relevant to this appeal, A.N., who was born in October 2002, was close with her maternal aunt, April ("April"), and her aunt's husband, the defendant Adkins. In 2011, when A.N. was nine years old, she visited Adkins's home on one particular occasion. Adkins showed A.N. a pornographic video on his laptop computer of a man and a woman engaged in sexual intercourse. Adkins then fondled A.N.'s breasts and genital area, inserted his fingers into her vagina, and licked her vagina. He also showed A.N. his penis.

[4] Some time after this incident, Adkins and his wife moved to a different house, which A.N. did not visit very often. But when the Adkinses moved yet again, A.N. resumed her almost weekly visits. Adkins began to tell A.N. that she was "getting so beautiful" and "growing into [her] body[.]" Tr. Vol. 3, pp. 99–100. He also asked A.N. if she was still a virgin and offered her alcohol. He again showed A.N. a pornographic video, this time of two women engaged in sexual activities, on his laptop. On one occasion, A.N. was in her cousin's room watching a movie when Adkins came in and placed his hands on A.N.'s breasts, inserted his finger into her vagina, and licked her vagina.

[5] On another occasion, Adkins offered A.N. alcohol and money in exchange for sex. Adkins told A.N. that he had previously paid another woman for sex. He also told A.N. that if she knew of anyone her age that would be willing to have sex with him in exchange for money, "he could make something happen." Id. at 109. When Adkins and his wife moved to another house, A.N. continued to visit. At this house, Adkins again molested A.N. when she was approximately eleven or twelve years old by placing his fingers on and in her vagina.

[6] In March 2017, A.N. wrote a letter to her girlfriend, who apparently had a bad experience with her own uncle. Regarding this, A.N. wrote:

?

Ex. Vol., Defendant's Ex. A, p. 5 (typographic errors in original). Somehow, this note was misplaced and found by a school guidance counselor, who confronted A.N. regarding the accusations about her uncle. This counselor informed A.N. that the molestation needed to be reported, so A.N. wrote a letter to her mother describing what Adkins had done to her. A.N.'s mother then informed the police.

[7] On April 10, 2017, the police interviewed Adkins. The interrogating officer read Adkins his Miranda rights, and Adkins signed a waiver of his rights. The officer confronted Adkins with A.N.'s accusations, which Adkins initially denied. Adkins admitted that he may have brushed against A.N.'s breasts while wrestling with her. Eventually, however, after several hours of interrogation, Adkins admitted to placing his fingers inside A.N.'s vagina, fondling her breasts, performing oral sex on her, and showing her pornography.

[8] On April 17, 2017, the State charged Adkins with two counts of Class A felony child molesting and one count of Class D felony disseminating of matter harmful to minors.1 At a pre-trial hearing held on September 18, 2017, the trial court heard arguments on the State's motions in limine. At this same hearing, Adkins made an oral motion in limine seeking to prohibit the State from referring to Adkins's taped statement to the police as a "confession or admission," except during closing argument. Tr. Vol. 2, p. 6. The prosecuting attorney indicated that the State had no objection. Accordingly, the following day, the trial court entered an order that granted the State's motions and also granted Adkins's oral motion regarding the statement to the police, stating in relevant part: "The Court now GRANTS the Defendant's oral Motion in Limine as to referring to the Defendant's statement as a ‘confession’ or ‘admissions’ except as to characterizations that the State may make in closing argument." Appellant's App. Vol. 2, p. 59.

[9] A jury trial began on September 25, 2017. At the conclusion of the State's evidence, Adkins moved for a directed verdict on all counts. With regard to the charge of dissemination of matter harmful to minors, Adkins argued that showing pornography on his computer to A.N. did not constitute "disseminating" as set forth in the charging information and the statute it was based on. Tr. Vol. 3, pp. 209–10. The State argued that it had met this definition, but nevertheless moved to amend the information to conform with the evidence, i.e., to allege that instead of "disseminat[ing] matter harmful to minors" under Indiana Code section 35-49-3-3(a)(1), Adkins instead "display[ed] matter that is harmful to minors in an area to which minors have visual, auditory, or physical access," under section 35-49-3-3(a)(2). Tr. Vol. 3, pp. 213–14. Adkins objected, claiming that he had based his defense on the original language of the charging information. The trial court took the matter under advisement. The State then filed a written motion to amend the language of the information charging Adkins with dissemination of matter harmful to minors the following day, the last day of trial, which motion the trial court granted.

[10] At the conclusion of the trial, the jury found Adkins guilty of Class A felony child molesting and of Class D felony disseminating matter harmful to a minor.2 On November 1, 2017, the trial court sentenced Adkins to concurrent terms of forty years on the Class A felony convictions and to a consecutive term of two years on the Class D felony conviction. Adkins now appeals.

I. Alleged Violations of the Motion in Limine

[11] Adkins first contends that the State repeatedly violated the trial court's motion in limine and that he was prejudiced by this violation. As noted above, the trial court granted Adkins's oral motion in limine prohibiting the State from referring to Adkins's taped statement to the police as a "confession" or "admission" except in closing argument. Appellant's App. Vol. 2, p. 59. On appeal, Adkins claims that the State violated this order "30 times." Appellant's Br. at 10. Adkins, however, fails to cite to any portion of the transcript in which the State or the State's witnesses refer to Adkins's statement as a "confession" or "admission." It is not our role to scour the transcript in search of these alleged violations. See Myers v. State , 33 N.E.3d 1077, 1105 n.8 (Ind. Ct. App. 2015) (noting that the court on appeal would not scour the voluminous record to search for support of appellant's contentions), trans. denied .

[12] Our review of the transcript finds little support for Adkins's contentions. To the contrary, our search of the transcript indicates that the only times the words "confession" or "admission" were used were during Adkins's own counsel's questions regarding false confessions and the witnesses' answers in response to these questions. See , e.g. , Tr. Vol. 3, p. 20 (testimony of interrogating officer responding to defense counsel's cross-examination regarding why police did not investigate another individual, "He [Adkins] admitted to the crime, and I had no reason to go talk to [the other individual]."); Id. at 74 (testimony of interrogating officer responding to defense counsel's questions suggesting that officer had already informed Adkins of the substance of the accusations against him, claiming that he had not informed Adkins of specific details, "so if he confess[es] and give[s] me specific details, then he's recalling an incident and not something I told him."); Id. at 81–82 (defense counsel questioning interrogating officer, "In any of your training, did they talk to you about the dangers of false confessions?" and "you don't recall anything about dangers of false confessions during any of [your] trainings[?]" and "So they sent you to a school and they didn't bring anything up about the dangers of false confessions?" and "Are you aware that people falsely confess to things?"); Id. at 82 (interrogating officer's testimony that he was not trained on false confessions and that he tries not to tell suspects specific details "so when they do confess, they -...

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