Brock v. State
| Decision Date | 15 August 2022 |
| Docket Number | 21A-CR-2897 |
| Parties | Clyde H. Brock, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata collateral estoppel, or the law of the case.
Appeal from the Allen Superior Court The Honorable David M. Zent Judge Trial Court Cause No. 02D06-1804-F1-4
Attorney for Appellant
Hayes Ruemmele, LLC
Indianapolis, Indiana
Attorneys for Appellee
Theodore E. Rokita
Attorney General for Indiana
Megan M. Smith
Deputy Attorney General
Indianapolis, Indiana
[¶1] Clyde H. Brock ("Brock") challenges his convictions and sentences for two counts of child molesting, as Level 1 felonies;[1] child molesting, as a Level 4 felony;[2] vicarious sexual gratification, as a Level 4 felony;[3] child solicitation, as a Level 5 felony;[4] and child molesting, as a Class C felony.[5]
[¶2] We affirm in part, reverse in part, and remand.
[¶3] Brock purports to raise four issues which we restate as the following five issues:
[¶4] C.B. ("Child") was adopted by her parents, Marty Brammer ("Father") and Lily Brock ("Mother"), in 2005 when she was ten months old and the family lived in Casper, Wyoming. In 2011, Father and Mother separated, and Child and Mother moved to Indiana where Mother's family lived. In November of 2011, Mother and Child moved to an apartment in Flora, Indiana. Father moved to Indiana in 2012 but moved back to Wyoming for work in 2014.
[¶5] Mother began dating Brock in 2012. While Child and Mother lived in Flora, Brock showed Child his penis and asked Child to put it in her mouth. Child did so, and Brock told Child not to tell Mother what happened.
[¶6] Sometime when Child was in the fourth grade, Mother and Child moved into Brock's residence in Fort Wayne. Mother and Brock married in May of 2014. During this time, Brock had Child fondle his penis after showing her how to do it. Brock also asked Child to fondle her own genitals in his presence. Child informed Mother what Brock was doing to her, and Mother confronted Brock but did not move out of the home or file for dissolution. Child did not disclose the sexual abuse to Mother again.
[¶7] Approximately one year after moving to Fort Wayne, Mother and Child moved to Roanoke with Brock. During this time, Brock had Child perform oral sex on him on more than one occasion. When Child asked Brock for things, he told her that she could have them if she performed oral sex on him. On one occasion, Brock performed oral sex on Child and put his mouth on her breasts while they were in Brock and Mother's bedroom. More than once, Brock had Child completely disrobe, lie on the floor with her buttocks in the air, and shake her buttocks while he masturbated. On other occasions, Brock had Child disrobe down to her underwear, and he fondled her breasts. Brock also repeatedly had Child masturbate him during this time.
[¶8] During this time period, Brock usually molested Child while Mother was either in the shower or at work. One incident of molestation occurred while Child's grandmother was downstairs. During that incident, Brock instructed Child to remove her pants and underwear and bend over with her buttocks in the air. Brock instructed Child to hide if anyone came near while he was molesting her. Brock instructed Child not to tell anyone about what he was doing to her. If Child complied with Brock's instructions during the molestations, he would buy her things, such as drinks from Starbucks and toys.
[¶9] In 2016, Child began cutting and scratching herself because of the molestations. Child cried during classes at school and eventually began disclosing the molestation to some friends. Child told E.D. that she had a bad home life. Child eventually started seeing a counselor because of the cutting but did not disclose the molestation to her counselor because Mother was in the room during every counseling session.
[¶10] In June of 2017, Child went to visit her father in Wyoming over summer break. Brock asked Child to communicate with him via Facebook messenger. While in Wyoming, Brock had Child send him photographs of her "private areas." Tr. v. II at 104. Child took photographs of herself in which she was completely nude and lying down on her back. Child sent Brock the photographs through Facebook messenger. Brock instructed Child to delete the photos immediately, and she complied.
[¶11] While in Wyoming, Child disclosed the molestations to her friend, T.H. Child asked T.H. not to tell anyone, but T.H. told her mother. T.H.'s mother reported the allegation to the Department of Family Services ("DFS") in Wyoming and contacted Father. DFS notified Detective Randy Lutterman ("Det. Lutterman") of the Lander, Wyoming police department about the report. Det. Lutterman contacted the Allen County Sheriff's Department in Indiana regarding Child's disclosure. The Indiana Department of Child Services ("DCS") in Fort Wayne also received a call reporting the abuse of Child. Brock continued to attempt contact with Child through July 10, 2017.
[¶12] Det. Lutterman interviewed Child at Father's house, and that interview led Det. Lutterman to believe "there could be some evidentiary value" to Child's cellular phone. Tr. v. I at 237. Child turned over her phone to Father at Det. Lutterman's suggestion. Child participated in a forensic interview one or two days later. Det. Lutterman procured a warrant and retrieved Child's cellular phone from Father. Det. Lutterman sent Child's phone to the Federal Bureau of Investigation ("FBI") for analysis. Brock consented to a search of his phone, and it was also sent to the FBI for analysis.
[¶13] When Child spoke to Mother on the phone after Child's disclosure of the molestation, Mother sounded angry and hung up on Child. Mother did not cooperate in the DCS investigation of the molestation of Child. Child remained with Father in Wyoming, and Child and Mother eventually ceased all communication with each other.
[¶14] Agent Jeff Robertson of the FBI ("Agent Robertson") conducted the analysis on both Child's and Brock's cellular phones. Agent Robertson recovered from Child's phone deleted messages from Brock to Child. Agent Robertson also recovered six deleted photographs taken with Child's phone on June 29 and 30 of 2017. Four of the photographs contained images of Child's vagina and two of the photographs contained images of Child's anus. The images were taken at three separate times and were all taken within a minute of Child talking to Brock on the phone.[6] Brock had a hidden vault application on his phone that was designed to hide data, such as photos and videos, and the authorities were not able to access that hidden vault.
[¶15] The State charged Brock with two counts of child molesting, as Level 1 felonies; child molesting, as a Level 4 felony; vicarious sexual gratification, as a Level 4 felony; child solicitation, as a Level 5 felony; and child molesting, as a Class C felony. Prior to trial, the State filed a notice of 404(b) evidence and its intent to introduce a prior act of sexual abuse of Child by Brock that occurred when Child was living with Mother in Flora, Indiana. The State argued that this incident was evidence of grooming, knowledge, and plan because it was the "beginning point on the road to what happens [to Child] later." Tr. v. I at 10. The State also argued that it demonstrated the relationship between the parties and gave context to understand why Child delayed disclosing the molestation. Brock objected to the admission of the evidence and argued that the incident in Flora was "classic 404[,]" not relevant to the charges, and that the prejudice outweighed any probative value. Id. at 14. The trial court found that the incident that occurred in Flora was relevant and probative, and that the probative value was not substantially outweighed by the prejudicial impact. The court further noted that it would provide a limiting instruction to the jury regarding the evidence of that incident.
[¶16] Brock filed a motion in limine to prevent the State from calling Patricia Fox ("Fox") as an expert witness to testify about "(a) the methodology or procedure for interviewing children; [and] (b) the workings of the brain the mind; and the memory process." App. v. III at 31. Brock argued that Fox was not qualified under Indiana Evidence Rule 702 as an expert, which he described as "psychologists, psychiatrists, neuroscientists, and neuropsychologists." Id. at 52. Brock also argued that Fox's testimony would not be relevant because this case did not involve recalled recollection. The State argued that Fox was an appropriate witness under Evidence Rule 701 to discuss testimony regarding script and episodic memory. The State noted that Fox had a master's degree in counseling, had been a therapist for about twenty-five years, and had specific training in the area of child forensic interviews, which included training on script and episodic memory that are relevant to this case. The trial court preliminarily ruled that, if the State laid the...
To continue reading
Request your trial