Laird v. State

• Decision Date: 15 June 2018
• Docket Number: Court of Appeals Case No. 69A05–1707–CR–1709
• Citation: 103 N.E.3d 1171
• Parties: Robert Lee LAIRD, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

103 N.E.3d 1171

Robert Lee LAIRD, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

Court of Appeals Case No. 69A05–1707–CR–1709

Court of Appeals of Indiana.

FILED June 15, 2018

Attorney for Appellant: Leanna Weissmann, Lawrenceburg, Indiana

Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Ellen H. Meilaender, Supervising Deputy Attorney General, Andrew Kobe, Deputy Attorney General, Indianapolis, Indiana

Mathias, Judge.

[1] Robert Lee Laird ("Laird") was convicted in Ripley Circuit Court of Level 4 felony child molesting and sentenced to ten years of incarceration. Laird appeals and presents one issue, which we restate as whether the trial court erred by admitting evidence regarding the search history found on Laird's computer.

[2] We affirm.

Facts and Procedural History

[3] On December 25, 2015, twelve-year-old C.L. went to spend the latter part of Christmas Day with his father, having spent the earlier part of the holiday with his mother. Laird is C.L.'s uncle, the twin brother of C.L.'s father, and was also at C.L.'s father's house that evening. C.L. had received a new iPad as a gift that day and sat on the couch close to his uncle Laird while they both played a game on the iPad. As they sat on the couch, Laird rubbed his pinky finger on C.L.'s penis over his clothing. C.L. initially thought Laird had done this accidentally, but when Laird kept touching him, he knew that it was improper. C.L. told his older sister about the incident but did not tell his father at that time.

[4] Later that evening, Laird invited C.L. to sleep in a twin bed with him. When C.L. lay down with his uncle, Laird put his arms around the boy and slowly moved his hands down until he touched C.L.'s penis over his clothes. C.L. repositioned himself to get away from Laird's hand. Laird then took C.L.'s hand and placed it under his clothes and on his penis. C.L. stated that he needed to get a drink of water and got up and left the bed. But instead of getting a drink, he again told his older sister, who told him that they needed to tell their father about what had happened. C.L. told his father, who then ordered his brother to leave the house. C.L. also sent a text message to his mother, telling her that she needed to contact him. C.L.'s mother eventually came and got her son and took him back to her home. C.L.'s parents called the police to report the incident.

[5] During the course of the investigation, the police interviewed Laird twice. At the first interview, Laird claimed that C.L. was not innocent, stating that the boy had been playing with a toy lightsaber and pretending it was an erect penis. He also stated that C.L. had attempted to embarrass his sister while she was on the phone by eating a banana and being "provocative" with the banana. Tr. Vol. 3. pp. 44–45. Although Laird admitted that he rubbed C.L.'s belly while they were in bed, he denied having ever touched C.L.'s penis or making C.L. touch his penis. During a second interview, Laird again denied having touched C.L. improperly or having C.L. touch him improperly. He did state, however, that if he did touch C.L. inappropriately, it would have been accidental. During the police interview, Laird admitted that he was attracted to younger males, or as he put it, "younger dudes." Tr. Vol. 3, p. 89. He also responded positively when asked if he found "young teens sexually attractive." Id. at 90. But he later backtracked and claimed to be attracted only to "of age teens." Id. at 92.

[6] The police searched Laird's computer. On a password-protected account with Laird's name, the police found an internet search history that included searches for "naked twelve year old boy," "nude twelve year old boy," "young boy giving his first handjob," "young boy giving a handjob," and "boys first handjob fast cum," in addition to other searches for naked young boys' penises, father-son sex acts, and sex acts between men and boys. Appellant's App. Vol. 2, pp. 75–103.

[7] On January 28, 2016, the State charged Laird with one count of Level 4 felony child molesting. Prior to trial, the State filed a notice of intent to introduce evidence under Evidence Rule 404(b) regarding the following: (1) Laird's internet search history from December 12, 2015 showing that Laird searched for the terms "naked twelve year old boy" and "nude twelve year old boy"; (2) Laird's internet search history from December 22, 2015 showing that Laird searched for the terms "young boy giving his first handjob," "young boy giving a handjob," and "boys first handjob fast cum"; (3) Laird's 2016 conviction for dissemination of matter harmful to minors in which the victim was his underage niece; and (4) an incident in 1999 in which a nine-year-old boy alleged that Laird placed touched the child's genitals while in a hotel hot tub.

[8] Laird filed a motion seeking to exclude this evidence. The trial court held a hearing on these evidentiary matters on April 15, 2017. At the conclusion of the hearing, the trial court ruled that only the evidence of the searches on December 22, 2015, which was only three days before the incident with C.L., would be admissible; the court ruled that evidence regarding the other internet searches and prior incidents would be inadmissible.

[9] A jury trial was held on April 18–20, 2017. During the State's opening statement, the prosecuting attorney mentioned Laird's internet searches on December 22, 2015. Laird's counsel objected, and the following exchange between the trial court and defense counsel took place:

[Defense]: Just objecting for the record, that I don't think the evidence is going to show this and that it's inappropriate for Opening Statement, just objecting for the record.

THE COURT: Well, the record will reflect that and I think it's already been ruled upon in preliminary, I haven't heard any reason to be contrary to that ruling.

Tr. Vol. 2, p. 94.

[10] Indiana State Police Detective Sergeant Christopher Cecil testified that he searched Laird's computer and found the search history that included searches for the terms "young boy giving his first handjob," "young boy giving a handjob," and "boy's first handjob fast cum," all on December 22, 2015. Id. at 132–33. Laird made no objection to this testimony. See id.

[11] Immediately prior to the State's closing argument, Laird's counsel informed the trial court, "I just want the record to reflect the continuing objection to the three google search terms that I objected to in [the prosecuting attorney]'s opening statement so that I'm not interrupting in, during his closing argument." Id. at 156. The prosecuting attorney responded, "And I think for the record, Judge, [defense counsel] has objected throughout the preliminary proceedings in regards to the use of those, he objected in opening and I certainly understood his intentions for that objection and they continue throughout the trial." Id.

[12] The jury found Laird guilty as charged. At a sentencing hearing held on June 28, 2017, the trial court sentenced Laird to ten years of incarceration. Laird now appeals.

Discussion and Decision

[13] Laird's sole argument on appeal is that the trial court erred in admitting the evidence regarding the internet search history found on his computer. Decisions regarding the admission of evidence are left to the sound discretion of the trial court. Harrison v. State , 32 N.E.3d 240, 250 (Ind. Ct. App. 2015), trans. denied . On appeal, we review the trial court's decision only for an abuse of that discretion, and the court abuses its discretion only if its decision regarding the admission of evidence is clearly against the logic and effect of the facts and circumstances before it, or if the court has misinterpreted the law. Id.

[14] To preserve a claim of evidentiary error for purposes of appeal, a defendant must make a contemporaneous objection at the time the evidence is introduced. Brown v. State , 929 N.E.2d 204, 207 (Ind. 2010) (citing Jackson v. State , 735 N.E.2d 1146, 1152 (Ind. 2000) ). This is true regardless of whether the appellant filed a pre-trial motion seeking to exclude the evidence in question. Id. "The purpose of this rule is to allow the trial judge to consider the issue in light of any fresh developments and also to correct any errors." Id.

[15] Here, Laird filed a pre-trial motion in limine to exclude reference to his internet search history; he also objected when the prosecutor referenced the internet search evidence in the State's opening statement. However, Laird did not object at the time the evidence was introduced at trial.¹ He therefore failed to preserve the issue for appeal.² See id. Our conclusion is not altered by the fact that Laird made a "continuing" objection prior to the State's closing argument. At that point, the evidence in question had already been presented to the jury, and it was too late to make a continuing objection. See id. (concluding that appellant failed to preserve evidentiary issue where his attempt to lodge a continuing objection was made only after the jury was presented with all of the evidence in question).

[16] A claim that has been forfeited by a defendant's failure to make a timely objection can still be reviewed on appeal if the court determines that a fundamental error occurred. Id. However, the fundamental error exception to the contemporaneous-objection requirement applies only " ‘when the error constitutes a blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process.’ " Id. (quoting Mathews v. State , 849 N.E.2d 578, 587 (Ind. 2006) ). The alleged error must either make a fair trial impossible or constitute clearly blatant violations of basic and elementary principles of due process. Id. (citing Clark v. State , 915 N.E.2d 126, 131 (Ind. 2009) ). The fundamental error exception is "extremely narrow" and reaches only those errors that are so blatant that the trial judge should have...