Conley v. State

Citation42 N.E.3d 589 (Table)
Decision Date04 December 2015
Docket NumberNo. 31A01–1404–CR–157.,31A01–1404–CR–157.
PartiesLeo John CONLEY, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
CourtIndiana Appellate Court

Alan W. Roles, Coleman, Roles & Associates, PLLC, Louisville, KY, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

MEMORANDUM DECISION

BROWN

, Judge.

[1] Leo John Conley appeals his convictions for nineteen counts of child molesting as class A felonies and one count of child molesting as a class C felony. Conley raises four issues which we consolidate and restate as:

I. Whether the trial court abused its discretion by admitting the results of a polygraph examination;
II. Whether the court erred by denying Conley's motion for a mistrial; and
III. Whether the evidence is sufficient to sustain Conley's convictions for fifteen counts of child molesting as class A felonies.

We affirm.

Facts and Procedural History

[2] In 2004, Conley, born in 1963, married the mother of N.P. At the time, N.P.'s mother did not have custody of N.P., born in 1999, but Conley provided financial assistance and N.P. went to live with her mother and Conley in 2005 or 2006. N.P. called Conley both John and Dad. Conley normally walked around the house in boxer shorts and nothing else which made N.P. feel very uncomfortable.

[3] N.P.'s cousin, A.D., born in 1996, visited N.P. on multiple occasions. On a Saturday morning, A.D., N.P., and Conley were beneath covers watching cartoons, and Conley touched N.P. in her genitals. Other times, Conley touched N.P.'s vagina in the bedroom, the kitchen, the living room, and while going to Wal–Mart, and he touched her clitoris. Conley also put his mouth “down there” and would lick three or four times. Transcript I at 180.1

[4] While Conley and N.P. were standing in the kitchen when she was about seven or eight years old, he kept talking about putting his penis in her mouth, saying that it would be fun and that she should try it, and then told her to “do it.” Id. at 181. Conley pulled down his red boxers and then put his penis in N.P.'s mouth for [f]ive ten minutes if that.” Id. at 182. He ejaculated into her mouth. N.P. found the ejaculate to be salty and have “about the texture of glue,” and she ran to the trash can and spit it out. Id. at 183.

[5] Another time when N.P. was ten or eleven years old, Conley, N .P., and A.D. were in a bedroom, N.P. and A.D. were face down on a bed, and Conley stood behind them. Conley put lotion onto a “long and tan and double-headed” dildo that he kept in a locked black filing cabinet and inserted the dildo into N.P.'s anus. Id. at 185.

[6] Conley also kept DVDs and pornographic magazines in the filing cabinet, and Conley and N.P. watched movies of people having sex” twice a month on DVD or on a computer in the living room. Id. at 189. While they watched the movies, Conley would either be rubbing his penis or rubbing N.P. During one time watching pornography, Conley rubbed N.P.'s shoulders and became aroused.

[7] At some point, Conley performed oral sex on A.D. Specifically, he told A.D. to “get on [her] back and ... pull [her] pants down and lift [her] legs up,” and he then proceeded to lick her vagina. Id. at 249. On one occasion, A.D. was in the bedroom counting out money because she and N.P. were playing a game, Conley entered the room, leaned down, and started to “finger” her. Id. A.D. lost count, and Conley walked out laughing. Conley touched her female sex organ with his fingers more than ten times.2 Conley also placed lotion on his penis and placed it into A.D.'s anus on multiple occasions.3 After anal sex, A.D. had a “really hard time pooping” and went to see her doctor. Id . at 253.

[8] One time when A.D. was exiting the bathroom and Conley and N.P. were on the bed, Conley told A.D. to come over and suck his penis, and A.D. did so. Conley never attempted vaginal intercourse with A.D. because he said “it would get him caught.” Id. at 258. A.D. was seven years old “when all this stuff” with Conley started happening and it continued until she was fourteen years old. Id. at 260.

[9] N.P. talked to A.D. about Conley's actions, and A.D. told her not to tell people because N.P. would “get in trouble.” Id. at 191. At some point, A.D. told N.P. that she was ready to “come out and tell.” Id. at 202. N.P. initially denied being molested because Conley told her that if she said anything that she would be taken away from her mother, and she was afraid they were going to lose their home because Conley was the only person working. The Department of Child Services became involved and contacted the Indiana State Police.

[10] On October 25, 2011, Indiana State Police Detective David Miller met with Conley at the Harrison County DCS Office. On November 10, 2011, Conley arrived at the Indiana State Police Sellersburg post and met with Delmar Gross, a polygraph examiner with the Indiana State Police. Conley informed Gross that he had talked to a couple of lawyers and that one of the attorneys told him that the polygraph results should not be admissible in court. Gross asked Conley if he had an attorney, and Conley said “no he had not hired one at that time.” Id. at 326.

[11] Prior to taking the polygraph examination, Gross reviewed a Stipulation as to Admissibility of Polygraph Examination Result (the “Stipulation”). The Stipulation stated that Conley “after reading and understanding his rights and signing a waiver, now enters into an agreement to stipulate as to the admissibility of a polygraph examination to be taken” by him on November 10, 2011. State's Exhibit 1 at 1. The Stipulation also stated that the “written report of the results of said examination will be introduced into evidence, without an objection by either the State, [Conley,] or counsel thereof, at the time of the examiner's testimony at any trial or hearing.” Id. at 2. It also provided:

10. That [Conley] hereby certifies that Dave Miller, a detective with the Indiana State Police, has thoroughly discussed that polygraph examination results are not allowed to be admitted as evidence under current court rules, and that [Conley] hereby knowingly, voluntarily, and expressly waives his right to have such evidence excluded from any trial, hearing, or proceeding.
11. That [Conley] hereby certifies that Dave Miller and/or an agent of the Indiana State Police has thoroughly discussed the taking of a polygraph examination; the effect and meaning of this stipulation, including the admissibility of the examiner's report, testimony and/or opinions in any trial or hearing involving [the] offense that has been alleged in the above matter; and, that the examiner's report, testimony and/or opinions could result in [Conley] being charged and/or convicted of the offense alleged in this matter.
12. That the State and [Conley] hereby expressly waive any and all objections of said examiners' testimony as to the competency, weight, relevancy, remoteness, or admissibility of such testimony based on legal, judicial, social policy, due process of law, and/or such rules of evidence as might otherwise govern.

Id. at 2–3.

[12] Gross read the Stipulation to Conley, and Conley took a break for about five minutes to think about it in the lobby or outside and came back in and agreed with the Stipulation. Gross also reviewed a waiver of rights form informing Conley of his rights. Gross and the waiver of rights form informed Conley of his right to remain silent, that anything he said could be used against him in court, that he had the right to talk to a lawyer for advice before they asked any questions and to have him or her with him during questioning, that a lawyer would be appointed for him before questioning if he wished, and that he had the right to stop answering at any time until he talked with a lawyer. Conley appeared to understand the rights and the Stipulation, did not appear to be under the influence of any drugs or narcotics, and was cooperative. He agreed with everything in the form, said that he understood, and signed the form and the Stipulation.4

[13] Gross asked Conley what his understanding was as to why he had been asked to take a polygraph examination, and Conley said that A.D. had said “some stuff” of a sexual nature about him. Id. at 317. Gross asked Conley if his penis ever touched A.D. in a sexual manner, and Conley answered no. Gross then asked him if he was being truthful when he said that his penis never touched A.D. in a sexual manner, and Conley answered yes.5 Based on the charts and Conley's answers, Gross concluded that Conley was being deceptive. Gross reported to Conley that he had failed the test, and Conley said that he did not touch A.D. or N.P. and elected to end the interview.

[14] At some point, Harrison County Sheriff's Lieutenant Nicholas Smith went to Conley's home, and Conley's wife gave him permission to search the home. Lieutenant Smith located a bottle of lotion next to the bed as described by N.P. and the locked black metal filing cabinet. Conley's wife obtained the keys to the filing cabinet, and Lieutenant Smith discovered pornography and numerous dildos including a double-headed dildo. Lieutenant Smith also took a computer because N.P. had alleged that she watched pornography with Conley, and the United States Secret Service recovered internet browsing history files related to a vast number of pornography sites.

[15] On May 22, 2012, Lieutenant Smith obtained a search warrant to view, inspect, and photograph Conley's pubic region and genitalia because N.P. and A.D. had alleged that his pubic region was shaved. Lieutenant Smith determined that Conley's pubic region was shaved and photographed his penis and pubic region.

[16] On August 10, 2012, the State charged Conley with nineteen counts of child molesting as class A felonies and one count of child molesting as a class C felony. Counts I to XV related to A.D., and Counts XVI to XX related to N.P.

[17] ...

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