Mise v. State

Citation142 N.E.3d 1079
Decision Date25 March 2020
Docket NumberCourt of Appeals Case No. 19A-CR-1049
Parties Richard A. MISE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
CourtCourt of Appeals of Indiana

Attorney for Appellant: Russell B. Cate, Cate, Terry & Gookins, LLC, Carmel, Indiana

Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Lauren A. Jacobsen, Deputy Attorney General, Indianapolis, Indiana

Pyle, Judge.

Statement of the Case

[1] Richard A. Mise ("Mise") appeals, following a jury trial, his convictions and aggregate sentence for Class A felony child molesting1 and Class C felony child molesting.2 Mise argues that: (1) the trial court committed fundamental error when it admitted into evidence testimony from the two victims relating to more than one instance of inappropriate touching; and (2) his aggregate advisory sentence with time suspended to probation is inappropriate. Concluding that Mise has failed to show fundamental error and that his sentence is not inappropriate, we affirm Mise's convictions and sentence.

[2] We affirm.

Issues

1. Whether the trial court committed fundamental error when it admitted into evidence testimony from the two victims.

2. Whether Mise's sentence is inappropriate.

Facts

[3] Mise has five children with two different women, neither of whom he married. These two women each had a daughter with men other than Mise. These daughters, S.M., born in September 2001, and E.R., born in June 2002, are the victims in this case.

[4] S.M.'s mother met Mise in 2002 when S.M. was five or six months old. S.M. had a father-daughter relationship with Mise. S.M.'s mother had an eleven-year relationship and four sons with Mise. In 2013, after that relationship had ended, Mise moved into his parents' house in Noblesville. Thereafter, S.M. and her four brothers stayed with Mise at his parents' house every other weekend.

[5] E.R. first met Mise around 2013 when she was eleven or twelve years old. E.R.'s mother had a daughter, G.R., with Mise. From the time that E.R. met Mise, she and G.R. spent "[a]lmost every weekend" visiting Mise at his parents' house. (Tr. Vol. 3 at 23). During some of those weekends, S.M. and her four brothers also visited Mise.

[6] During one weekend, Mise's dog had fleas, and E.R., who was eleven or twelve years old, gave the dog a bath in the bathroom. After she had finished bathing the dog, Mise went into the bathroom and told E.R. that "he wanted [her] to check [her] vagina [to see] if [she] had fleas." (Tr. Vol. 3 at 28). Mise watched as he had E.R. take off her clothes, squat on the floor, stick her finger in her vagina, pull it out, and check it for fleas.

[7] On a day shortly thereafter, E.R. gave Mise's dog another bath. After the bath, Mise had E.R. check herself for fleas while in his bedroom. Mise told E.R. to "take off [her] pants[,] ... squat or lay down[,] ... stick [her] finger in [her] vagina[,] ... pull it back out[,] and see if [she] had fleas." (Tr. Vol. 3 at 30). Again, Mise watched E.R. as she did the flea check. E.R. was "really scared" at that time but did not say anything to Mise because she felt that he was "the powerful human[.]" (Tr. Vol. 3 at 33). E.R. did not tell anyone what had happened because she was "afraid that [she] would have been in trouble." (Tr. Vol. 3 at 32).

[8] Later, sometime between late 2013 and early 2014, E.R., S.M., and their mothers and siblings visited Mise on the same day. E.R. was sitting in the living room on the couch with Mise as she played with her Kindle and he watched television. Mise sat against the couch's armrest with his legs spread out, and E.R. sat in between his legs and leaned against him. Mise's father was also in the living room, sitting at the computer with his back to Mise. Mise reached under the blanket that covered E.R., slid his hand inside her jeans, inserted his finger in her vagina, and rubbed his finger up and down. As he did so, Mise whispered in E.R.'s ear, asking her, "Does that feel good?" (Tr. Vol. 3 at 26). When Mise's mother approached and walked into the room, Mise pulled his hand out E.R.'s pants. E.R. left the couch and "went straight back" to where S.M. was in the house, and E.R. told S.M. what Mise had done. (Tr. Vol. 3 at 27). After that incident, E.R. never went back to Mise's house.

[9] Thereafter, Mise inappropriately touched S.M. when she was visiting at Mise's house. On one occasion when S.M. was twelve years old, she was in Mise's bedroom talking to him when he "told [her] to get completely undressed." (Tr. Vol. 2 at 247). S.M. "d[id] what [she] was told" and removed her tank top and shorts. (Tr. Vol. 2 at 247). He then instructed S.M. to lie on the bed. Mise, who was wearing basketball shorts and no shirt, then started "fingering" S.M. (Tr. Vol. 2 at 248). He put his hand on top of and inside her vagina. S.M. told Mise to stop, but he did not. He eventually stopped when S.M. got up, got dressed, and ran out of the bedroom. S.M. did not tell anyone what Mise had done because she "didn't feel comfortable saying it." (Tr. Vol. 2 at 250).

[10] A couple of weeks later, Mise again inappropriately touched S.M. At that time, she had a skin rash on her arms, legs, chest, and stomach, and she had a medicated lotion that she had to put on it. S.M. was able to apply the lotion by herself, but Mise went into the bathroom with her to apply lotion on her. Mise told S.M. to get undressed and to sit on the toilet, and he rubbed lotion on S.M.'s arms, legs, and chest, including her "boobs." (Tr. Vol. 3 at 4). Mise then touched S.M. "[i]n the private area" and began "fingering [her] again." (Tr. Vol. 3 at 4, 5). After a few minutes, S.M. "pushed him" off, got dressed, and ran out of the bathroom. (Tr. Vol. 3 at 5).

[11] Approximately three years later, S.M. told her school counselor what Mise had done to her. S.M. also told her school counselor that she was concerned about E.R. The school counselor then reported the allegations to DCS and the police. Thereafter, in March 2016, forensic interviewers at Cherish Child Advocacy Center ("Cherish Center") interviewed S.M. and E.R. Apparently, during E.R.'s forensic interview, she stated that Mise had touched her vagina when he checked her for fleas. The full content of the girls' forensic interviews, however, is not known because the State did not offer them as evidence during trial.

[12] Hamilton County Sheriff's Department Detective Sergeant Scott Goff ("Detective Goff") interviewed Mise on March 30, 2016 and April 12, 2016. During the first interview, Mise acknowledged that he had had a father-daughter relationship with S.M. since she was a baby. Detective Goff asked Mise whether he had rubbed S.M.'s vagina while on his bed, and Mise denied it. The detective also asked Mise about S.M.'s rash, and Mise stated that he had rubbed the rash cream on S.M.'s back only and that he had instructed her to put the cream on any other part of her body. Mise also stated that he had no memory of doing anything wrong.

[13] Additionally, Detective Goff asked Mise about allegations involving E.R. The detective asked Mise if he had talked to E.R. about masturbation because E.R. had said that Mise had talked to her about "sticking a finger in the hole" and it "feeling good." (State's Ex. 6R). Mise denied doing so. Detective Goff also asked Mise about how he had checked E.R. for fleas in the bathroom after she had washed the dog, and he denied that he had E.R. open her vagina and then checked it for fleas. Mise stated that he had told E.R. that fleas could go anywhere and that he had instructed her to spray herself off after giving the dog a bath. Mise also denied that he had put his hand down E.R.'s pants and had rubbed her vagina while sitting on the couch, and he stated that his dad was always in the living room with him.

[14] During the second interview, when Detective Goff and Mise discussed whether Mise had rubbed the rash cream on S.M.'s vagina, Mise stated that he had never directly done anything of which he was consciously aware. When the detective asked Mise whether he had indirectly touched her, Mise pondered that he may have explained to her in too much detail about how to rub in the cream and where to rub it. Mise stated that he had told S.M. to put the cream everywhere and that he had demonstrated to her, by rubbing his own nipples, how to rub it on her chest. Mise again denied that he had put his finger in E.R.'s vagina while they were on the couch, but he mused that, when she leaned up against him on the couch, he may have put his arms around her and put his hand on her belly. Detective Goff and Mise again discussed what had happened with the flea check after E.R. had washed the dog. Mise denied that he had touched E.R.'s vagina or breasts but stated that E.R. had raised her shirt for him to look at her back for fleas.

[15] The State later charged Mise with Class A felony child molesting and Class C felony child molesting. In regard to the Class A felony, the State generally alleged that between June 24, 2013 and June 23, 2015, Mise performed deviate sexual conduct with E.R. For the Class C felony, the State generally alleged that between September 14, 2013 and February 28, 2015, Mise fondled or touched S.M. with intent to arouse or satisfy the sexual desire of himself or S.M.

[16] After he was charged, Mise filed a motion for discovery in which he sought, among other things, any exhibits and any 404(b) evidence that the State might offer at trial. In April 2017, the State filed a discovery response, indicating the various exhibits, which included a copy of S.M.'s and E.R.'s forensic interviews, that it had provided to Mise's counsel.

[17] The trial court held a three-day jury trial in March 2019. At that time, S.M. was seventeen years old, and E.R. was sixteen years old. During opening statements, the prosecutor told the jurors that they would hear testimony from S.M. about two instances where Mise had touched her vagina, once in his bedroom and the second time when ...

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7 cases
  • Hankins v. State
    • United States
    • Indiana Appellate Court
    • 31 d1 Julho d1 2023
    ... ... unfairly prejudicial under Rule 403. Grooming is defined as ... "the process of cultivating trust with a victim and ... gradually introducing sexual ... behaviors until reaching the point where it is possible to ... perpetrate a sex crime against the victim." Mise v ... State , 142 N.E.3d 1079, 1087 (Ind.Ct.App. 2020) (citing ... Piercefield v. State , 877 N.E.2d 1213, 1216 n.1 ... (Ind.Ct.App. 2007)). In cases involving child molesting, we ... have held that evidence which shows a defendant's ... preparation and planning, ... ...
  • Mehringer v. State
    • United States
    • Indiana Appellate Court
    • 24 d1 Agosto d1 2020
    ...to him if she found out. Given these circumstances, we see nothing inappropriate about his nine-year sentence. See Mise v. State , 142 N.E.3d 1079, 1089 (Ind. Ct. App. 2020) (Court observed the defendant "committed his offenses against two young girls with whom he shared a father-daughter r......
  • Morgan v. State
    • United States
    • Indiana Appellate Court
    • 20 d4 Maio d4 2021
    ...thirty-six-year aggregate sentence is not inappropriate given the nature of his offense and his character.8 See Mise v. State , 142 N.E.3d 1079, 1089 (Ind. Ct. App. 2020) (holding aggregate thirty-four-year sentence for two counts of child molesting was not inappropriate given nature of off......
  • Hale v. State
    • United States
    • Indiana Appellate Court
    • 1 d1 Novembro d1 2021
    ... ... 2017), trans. denied ... [¶20] ... Here, Hale's conduct was far more egregious than the ... typical offense accounted for by the legislature. Hale was ... S.C.'s stepfather and responsible for her care while her ... mother worked. See Mise v. State, 142 N.E.3d 1079, ... 1089 (Ind. Ct ... App. 2020) (observing that the defendant "committed his ... offenses against two young girls with whom he shared a ... father-daughter relationship. He abused his position of trust ... with these girls and robbed them ... ...
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