ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
WILLIAM G. SMOCK KAREN M. FREEMAN-WILSON
MICHAEL A. SLAGLE Attorney General of Indiana
Smock & Etling
Terre Haute, Indiana TERESA DASHIELL GILLER
Deputy Attorney General
COURT OF APPEALS OF INDIANA
BRADLEY J. DAVIES, )
vs. ) No. 61A04-9910-CR-448
STATE OF INDIANA, )
APPEAL FROM THE PARKE CIRCUIT COURT
The Honorable Ronda R. Brown, Judge
Cause No. 61C01-9810-CF-111
June 15, 2000
OPINION - FOR PUBLICATION
After a jury trial, Bradley J. Davies was convicted of two counts of
child molesting as Class A felonies, and one count of child molesting as
a Class C felony.
He now appeals, raising the following issues for
Whether Daviess pre-polygraph statement was voluntary and comported with his
Whether the trial court erred in admitting audiotapes of Daviess pre-polygraph statement.
Whether the results of Daviess polygraph examination were admissible, in that his consent
was voluntary, the test was performed pursuant to a valid stipulation, and the
results were reliable.
Whether Daviess post-polygraph statement was voluntary.
Whether Daviess convictions are supported by sufficient evidence.
Whether Daviess convictions violate double jeopardy.
Whether the trial court erred in sentencing Davies.
We affirm in part and reverse in part.
FACTS AND PROCEDURAL HISTORY
On October 11, 1998, twenty-three-month-old K.S. drowned. While cleaning the body, Marjorie
Frey, a morgue technician, noticed a possible rectal tear. Dr. Roland Kohr
performed an autopsy and found evidence that K.S. had been sexually abused.
Davies, who lived with K.S.s mother, Melissa Stinson, heard news reports about injuries
to the child not caused by the drowning and contacted police, insisting on
discussing the matter. He and Stinson went to the Parke County Sheriffs
Department, where each was interviewed separately in the conference room. Deputy Randy
Kneeland conducted Daviess interview; Conservation Officer Kent Hutchins was also present. During
Daviess interview, he admitted that he molested the child, then retracted his admission
and agreed to take a polygraph examination.
Kneeland and Hutchins transported Davies to Boone County, where Kneeland had arranged for
the polygraph to be administered by Boone County Sheriff Ern Hudson, who was
a certified polygraph examiner. Hudson read Davies a standard interrogation form and
a polygraph waiver of rights form, both of which contained the
Hudson then read to Davies a written polygraph stipulation. Davies signed
all three documents. Davies failed his polygraph test, and after again receiving
the Miranda warnings, gave a more complete confession both in his post-polygraph interview
and in the car on the return trip to Parke County.
The jury convicted Davies as charged. The trial court sentenced him to
fifty years imprisonment on each Class A felony conviction, and eight years imprisonment
on the Class C felony conviction, all to run concurrently. He now
DISCUSSION AND DECISION
Davies first argues that the statement he made before he took the polygraph
test was inadmissible. He argues that the pre-polygraph statement was involuntary and
was taken in violation of his Miranda rights.
Davies claims that his pre-polygraph statement should not have been admitted at trial
because it was not voluntary. He argues that the totality of the
circumstances suggest that police coercion overcame his free will.
The decision whether to admit a defendants statement is within the discretion of
the trial court.
Schmitt v. State, 2000 WL 563124 at *1 (Ind.
May 8, 2000). On appeal from a determination that the accuseds statement
was admissible, we do not weigh the evidence nor resolve questions of credibility,
but consider the evidence which supports the decision of the trier of fact
in the case of contested evidence and any uncontested evidence presented by the
appellant. Snellgrove v. State, 569 N.E.2d 337, 343 (Ind. 1991).
The trial courts finding will be upheld if there is substantial evidence of
probative value to support it. Id.
The State has the burden of proving beyond a reasonable doubt that the
confession was voluntary and not induced by violence, threats, promises, or other improper
influences so as to overcome the free will of the accused at the
time he confessed. Id. (citing Taylor v. State, 479 N.E.2d 1310 (Ind.
1985)). When we review the voluntariness of a confession, we take into
consideration the entire record and look at the totality of the circumstances.
Johnson v. State, 584 N.E.2d 1092, 1099 (Ind. 1992), cert. denied, 506 U.S.
853, 113 S. Ct. 155, 121 L. Ed. 2d 105 (1992); Patterson v.
State, 563 N.E.2d 653, 655 (Ind. Ct. App. 1990). Among other circumstances,
we consider inconsistencies in the defendants statement, explicit or implicit promises by police
interrogators, and the coercive nature of the interrogation atmosphere. Patterson, 563 N.E.2d
at 655. Coercive police activity is a necessary prerequisite to finding a confession
is not voluntary within the meaning of the due process clause of the
fourteenth amendment. Id. (citing Colorado v. Connelly, 479 U.S. 157, 167, 107
S. Ct. 515, 522, 93 L. Ed. 2d 473, 484 (1986)).
Davies argues that the factors cited in
Patterson demonstrate that his statement was
not voluntary. He cites the numerous inconsistencies in his answers in the
interview, in which he admitted molesting K.S., then retracted his previous statement.
Davies also argues that the atmosphere of the interview was coercive because of
the interrogation tactics used by Kneeland, and the fact that he had slept
and eaten inadequately at the time of the interview.
A review of the entire record discloses that Kneeland was never rude, threatening,
or abusive to Davies throughout the interview. On the contrary, Kneeland and
Hutchins were respectful throughout the process, offered Davies food and water, and took
a break in the middle of the interview. While Kneeland did use
forceful questioning techniques, standard police interrogation does not equate to coercion.
Houser v. State, 678 N.E.2d 95, 102 (Ind. 1997) (confession not rendered involuntary
by officers use of typical interview techniques such as good cop, bad cop);
French v. State, 540 N.E.2d 1205, 1207 (Ind. 1989) (statement properly admissible where
defendant treated kindly and politely, was allowed to use the bathroom, was given
water, and was allowed to take breaks while giving his statement); Clephane v.
State, 719 N.E.2d 840, 842 (Ind. Ct. App. 1999) (defendants statement voluntary where
he returned caseworkers telephone call and went to the office for an interview,
knowing that he was free to go at any time).
Davies next contends that the trial court erred in admitting his pre-polygraph statement
because the statement was given in violation of his Miranda rights. The
Miranda warnings were designed to secure the criminal defendants constitutional right against compulsory
self-incrimination. Hayes v. State, 667 N.E.2d 222, 225 (Ind. Ct. App. 1996),
trans. denied; Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16
L. Ed. 2d 694 (1966). A defendant is entitled to
receive Miranda warnings if he is subject to custodial interrogation. Hurt v.
State, 694 N.E.2d 1212, 1217 (Ind. Ct. App. 1998), trans. denied, cert. denied,
525 U.S. 1008, 119 S. Ct. 525 (1998) (citing Cliver v. State, 666
N.E.2d 59, 66 (Ind. 1996)). A defendant is in custody if he
is formally arrested or is subjected to restraints on his freedom such that
a reasonable person in defendants position would believe he is not free to
leave. Id. (citing Pasco v. State, 563 N.E.2d 587, 593 (Ind. 1990)).
When an accused is subjected to custodial interrogation, the prosecution may not use
statements stemming from that interrogation unless it demonstrates the use of procedural safeguards
effective to secure the accuseds privilege against self-incrimination.
Miranda, 384 U.S. at
444, 86 S. Ct. at 1612. The Miranda warnings apply only to
custodial interrogation because they are meant to overcome the inherently coercive and police
dominated atmosphere of custodial interrogation. Miranda, 384 U.S. at 444, 86 S.
Ct. at 1612.
Courts have examined the concept of custody in numerous cases. For instance,
Clephane, 719 N.E.2d at 840, the defendant contended that his statement was
inadmissible because he was not advised of his Miranda rights. In that
case, a caseworker was investigating the possible sexual abuse of a teenager.
The caseworker contacted the defendant and asked him to come to her office
for an interview. Once at the office, the defendant volunteered that he
knew the purpose of the investigation. This statement was offered against him
The court held that the defendant was not entitled to
Miranda warnings because
he was not in custody at the time he made the damaging statement.
Id. at 842. He voluntarily returned the caseworkers telephone call and
came to her office, and he knew that he was at all times
free to leave, and in fact, left at one point and came back.
Id. Because a person in the defendants position would not believe
that he was prohibited from leaving, he was not in custody. Therefore,
no Miranda warnings were needed and the defendants statements were admissible. Id.
Similarly, in Zook v. State, 513 N.E.2d 1217 (Ind. 1987), police were investigating
a fire. Eventually, they narrowed their investigation to the defendant. An
officer telephoned the defendant and asked him to come to the station for
an interview. He agreed and voluntarily accompanied the officers to an interview
room. The questions were thorough, but polite, considerate, and not aggressive.
The defendant asked if he was under arrest and was told he was
not. Our supreme court held that these circumstances did not constitute custody,
and the defendants Miranda rights had therefore not yet attached. Id.
In this case, Davies initiated the contact between himself and law enforcement by
calling to inquire about the news report he heard. Hutchins testified that
he did not want to question Davies on that day because it was
the day of K.S.s funeral, but Davies insisted on speaking with him about
the report. Once Davies arrived at the Sheriffs Department, he was free
to leave at all times and went outside the building by himself to
smoke on at least one occasion. A reasonable person in Daviess situation
would not have believed he was prohibited from leaving. Therefore, Davies was
not in custody when he gave his pre-polygraph statement, and no Miranda warnings
were therefore necessary.
Nonetheless, Davies refers us to
State v. Aynes, 715 N.E.2d 945 (Ind. Ct.
App. 1999), in which this court affirmed the decision of the trial court
to suppress the defendants statements as the product of custodial interrogation without the
benefit of Miranda advisements. In that case, police went to the defendants
place of employment and told him that a criminal allegation had been made
against him. An officer then asked the defendant if he would come
to the Sheriffs Department to talk about it. The defendant agreed and
drove himself to the Sheriffs Department. The officer led the defendant through
the lobby to a secure area of the building which was locked to
both entry and exit. There, he questioned the defendant, who after initially
denying the allegation, eventually confessed. The trial court held that the defendant
was in custody and should have been advised of his Miranda rights.
Because he was not, his statement was inadmissible. The State appealed.
On appeal, we affirmed the trial court.
Id. at 950. We
noted that the interrogation was conducted in a secure area of the building,
and the investigation had already focused on the defendant. Therefore, we held
that the trial court did not abuse its discretion in suppressing the statement.
Id. See also Dickerson v. State, 257 Ind. 562, 276 N.E.2d
845 (1972) (interrogation initiated by police at police station in investigation which had
focused on defendant did constitute custody for purposes of Miranda); Johnson v. State,
484 N.E.2d 49 (Ind. Ct. App. 1985) (Miranda applies even where defendant goes
to police station voluntarily at the request of police if victim had already
identified him as attacker).
Aynes, in this case, the interview was conducted in a room
into which entry was secure, but which could be exited at any time.
Davies understood this and had gone outside alone to smoke. Further,
at the time of the interrogation, the investigation had not focused on Davies.
Finally, the procedural posture of this case is a critical distinction.
Aynes was the appeal of a trial courts decision to suppress the statement.
Here, the trial courts decision was to admit the statement. Our
holding in both cases is essentially the same: the trial courts decision
in the circumstances was not an abuse of discretion.
Here, Daviess statement was voluntary, and he was not in custody, so
warnings were not necessary. The trial court did not err in admitting
C. Harmless error
Even if Daviess pre-polygraph statement was taken in violation of Miranda, the error
in this case was harmless. Statements obtained in violation of Miranda and
erroneously admitted are subject to harmless error analysis. Alford v. State, 699
N.E.2d 247, 251 (Ind. 1998) (citing Houser, 678 N.E.2d at 102 n.8 (Ind.
1997)). A federal constitutional error is reviewed de novo and must be
harmless beyond a reasonable doubt. Id. (citing Chapman v. California, 386
U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967)).
A reviewing court must be satisfied that the State has met its
burden of demonstrating that the admission of the confession . . . did
not contribute to [the] conviction. Id. (citing Arizona v. Fulminante, 499 U.S.
279, 296, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991)).
The court must find that the error did not contribute to the verdict,
that is, that the error was unimportant in relation to everything else the
jury considered on the issue in question. Id. (citing Yates v. Evatt,
500 U.S. 391, 403, 111 S. Ct. 1884, 114 L. Ed. 2d 432
(1991), disapproved on other grounds by Estelle v. McGuire, 502 U.S. 62, 112
S. Ct. 475, 116 L. Ed. 2d 385 (1991).
The admission of Daviess pre-polygraph statement was harmless under this standard. The
statement contained a very general, quickly retracted admission that Davies molested K.S.
This evidence was cumulative of the much more detailed confession Davies provided after
his polygraph examination. Moreover, the jury heard the opinion of two polygraph
experts that Davies was being deceptive during his polygraph examination. We conclude
that the pre-polygraph statement did not contribute to the guilty verdict here.
Admission of audiotapes
Davies next argues that the trial court erred in admitting audiotapes of his
pre-polygraph interview that Kneeland conducted of Davies when he first came to the
Sheriffs Department. Davies argues on appeal that the audiotapes were of such
poor quality as to be inadmissible. The admission or exclusion of evidence
is a matter left to the sound discretion of the trial court, and
we will only reverse upon abuse of that discretion. Newman v. State,
719 N.E.2d 832, 835 (Ind. Ct. App. 1999), trans. denied (2000); Strangeway v.
State, 720 N.E.2d 724, 726 (Ind. Ct. App. 1999). After the State
began playing the tapes, the trial court determined that they were not of
sufficient clarity as to be understood by the jurors without assistance. It
then allowed the State to give jurors a written transcription of the tapes,
but admonished jurors that the tapes were the evidence and they should rely
on what they heard, not what they read. Davies argues that if
the tapes were not clear enough to hear, they should not have been
admitted at all.
Admitting the tapes was within the discretion of the trial court. The
tapes were relevant, authentic, and sufficiently audible to be helpful to the jury.
Further, we disregard errors in the admission of evidence where its admission
does not affect the substantial rights of a party.
Jones v. State,
708 N.E.2d 37, 40 (Ind. Ct. App. 1999), trans. denied. Here, even
if admitting the tapes was error, it was merely cumulative of other evidence
that Davies confessed to molesting K.S. Therefore, any error in the admission
of the tapes was harmless. See Johnston v. State, 541 N.E.2d 514,
515 (Ind. 1989) (no error in giving jury transcript of tape admitted into
evidence where sole purpose was to help jury in understanding and jury was
instructed that if tape differed from transcript, they should consider only tape).
III. Polygraph examination
Davies next challenges the results of the polygraph examination on three bases.
He claims that his waiver of rights prior to taking the polygraph examination
was invalid. He also argues that the polygraph stipulation he signed was
invalid. Finally, he contends that the conditions of the examination were so
poor as to render the results inherently unreliable, and therefore the results should
be inadmissible. We address each of these in turn.
Validity of waiver
Davies argues that the waiver of his rights that he signed prior to
taking the polygraph examination was invalid. The State bears the burden of
proving beyond a reasonable doubt that a defendant voluntarily and intelligently waived his
Miranda rights. Johnson, 484 N.E.2d at 51. If the record contains
substantial evidence of probative value to support the trial courts ruling, we will
affirm it. Id.
During Daviess initial interview with police, he requested to take a polygraph examination.
The officer conducting the interview, Kneeland, stopped the interview, and contacted the
prosecuting attorney, who prepared and signed a polygraph stipulation, and arranged for Boone
County Sheriff Ern Hudson to administer the test. Kneeland and Hutchins then
transported Davies to the Boone County Sheriffs Department.
The two officers arrived at the Boone County Sheriffs Department with Davies, who
was not under arrest and was not wearing handcuffs. Hudson testified that
everyone was cordial and respectful throughout the proceedings. Prior to starting the
exam and out of the presence of Kneeland and Hutchins, Hudson asked Davies
whether he wanted to take a polygraph test. He explained to Davies
what a polygraph exam would entail and that the subject matter of the
examination was Daviess possible involvement in sexual abuse of K.S. He then
confirmed that Davies wanted to take the exam. He read Davies his
Miranda warnings from a written standard advice of rights interrogation form, checking off
each line as he read. After he read the form to Davies,
he asked Davies if he had any questions about his rights. Davies
responded that he did not, and signed the form.
The form was admitted into evidence at trial and accurately and fully disclosed
to Davies his
Miranda rights. It explained that he had the 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 before questioning
and to have a lawyer present during questioning; that if he could not
afford a lawyer, one would be appointed for him before questioning; and that
he had the right to stop answering questions at any time. The
interrogation form then reads:
I have read the statement of my rights and understand what my rights
are. I am willing to make a statement and answer questions.
I do not want a lawyer at this time. I understand and
know what I am doing. No promises or threats have been made
to me and no pressure or coercion of any kind has been used
Record at 1295. Daviess signature appears at the end of this paragraph.
Hudson then read a second form to Davies. This form was specific
to polygraph examinations. Again, Hudson checked off each line as he read.
He then gave Davies an opportunity to read the form himself. Davies
stated that he had no questions and signed this form as well. This polygraph
waiver form contains the same information about Daviess rights, then states:
I have read the above statement of my rights, and it had been
read to me. I understand what my rights are. I do
wish to take the polygraph test. No force, threats, or promises of
any kind or nature have been used by anyone in any way to
influence me to waive my rights. I am signing this statement after
having been advised of my rights and before taking the polygraph test.
Record at 1296.
The trial court determined that the State had met its burden of showing
that Davies voluntarily and intelligently waived his rights prior to taking the polygraph
examination. This determination is supported by ample evidence in the record.
Daviess waiver was valid.
Davies next argues that the polygraph stipulation he signed prior to taking the
polygraph test is invalid and precludes the use of the results at trial.
Absent some form of waiver or stipulation by the parties, the results
of polygraph examinations administered to criminal defendants are not admissible. Sanchez v.
State, 675 N.E.2d 306, 308 (Ind. 1996). In Sanchez, our supreme court
[t]here are four prerequisites which must be met before the trial court may
admit polygraph test results: 1) that the prosecutor, defendant, and defense counsel all
sign a written stipulation providing for the defendants submission to the examination and
for the subsequent admission at trial of the results; 2) that notwithstanding the
stipulation, the admissibility of the test results is at the trial courts discretion
regarding the examiners qualifications and the test conditions; 3) that the opposing party
shall have the right to cross-examine the polygraph examiner if his graphs and
opinion are offered in evidence; and 4) that the jury be instructed that,
at most, the examiners testimony tends only to show whether the defendant was
being truthful at the time of the examination, and that it is for
the jury to determine the weight and effect to be given such testimony.
Id. Davies essentially argues that the polygraph stipulation he signed fails the
first prong of the Sanchez test.
In Willey v. State, 712 N.E.2d 434, 442 (Ind. 1999), our supreme court
held that polygraph results were erroneously admitted at trial because the parties polygraph
stipulation failed the first prong of the Sanchez test. In that case,
the court found the stipulation to be ambiguous because it provided that the
results of the test would be admissible at trial except for the chart
recordings, the examiners various worksheets, and all questions other than the relevant test
questions. Id. at 440-41. The court reasoned that this provision created
an ambiguity because these specifically excluded items would ordinarily be considered part of
the polygraph test results. Id. Utilizing principles of ordinary contract construction,
the court determined that this ambiguity had to be construed against the drafter
of the contract, the prosecution. When done so, the stipulation failed the
first prong of the Sanchez test, that the stipulation must provide for the
admission of the polygraph test results. Id. at 441. Thus, the polygraph
stipulation was invalid and the test results were erroneously admitted at trial.
Davies relies on Willey in arguing that the polygraph stipulation he signed was
invalid. However, the ambiguous provision of the Willey stipulation is not contained
in the stipulation signed by Davies. The analogous provision in this case
Bradley J. Davies does hereby expressly waive . . . and unequivocally agrees
that said report of the polygraph examination may become a part of the
record in said Court, as well as becoming an exhibit at a trial
against Bradley J. Davies, as well as to stipulate taking the polygraph operators
deposition by interrogatories (or otherwise) or to testify in open court.
Record at 1293. Thus, this provision creates no ambiguity with regard to
what would be admissible at trial. Unlike in Willey, where the provision
stated the test results would be admitted, then excluded items commonly referred to
as the results, this paragraph provides for the admission at trial of the
results of Daviess polygraph examination. Moreover, the evidence explicitly excluded in Willey,
the polygraph charts and the examiners notes and worksheets, was actually admitted here.
This provision meets the Sanchez test. The trial court did not
err in admitting the polygraph results on this basis.
Reliability of examination
Davies also argues that the stipulation was invalid because it is unconscionable.
Specifically, he argues that he was not represented by counsel at the time
he entered the stipulation and he was acting under duress. Davies was
proceeding without counsel at this phase of the investigation by his own election.
He had been advised of his Miranda rights and knew that he
had the right to halt the proceedings and have counsel appointed for him.
He chose to sign the waivers and the stipulation. We have
already held that his waiver of his rights was valid; we will not
use this forum to revisit this issue. Moreover, any duress felt by
Davies was insufficient to vitiate the stipulation. It was a stressful time
for Davies. Kneeland had confronted Davies directly about his possible involvement with
the sexual abuse of K.S., and Davies had confessed, then retracted his statement.
This latter circumstance, however, was of Daviess own creation. Moreover, it
was Davies who insisted on taking a polygraph examination. We do not
feel that these circumstances show that the polygraph stipulation was so unconscionable so
as to be unenforceable.
Davies argues that the exam was conducted under improper conditions, thus making the
results inherently unreliable. Specifically, he argues that the examination was conducted by
a law enforcement official, who could not be expected to conduct a fair
and impartial exam.
Hudson, a certified polygraph examiner, conducted Daviess examination. Hudson was also the
Sheriff of Boone County, but was in no way connected to the investigation
being conducted by Conservation Officer Hutchins or the Parke County Sheriffs Department.
Indeed, when Kneeland contacted Hudson to arrange the polygraph, he did not tell
Hudson of Daviess admission. Instead, Kneeland only told Hudson that they were
investigating a case of possible sexual abuse and that Davies had requested a
polygraph. Thus, Hudson was not privy to any details that would bias
him toward reading Daviess test results as deceptive.
Hudson testified at length at the motion to suppress hearing and at the
trial about his procedures in administering polygraph examinations. The examination consisted of
relevant and control questions. He reviewed the questions with Davies before the
test began, giving Davies the opportunity to object to the questions. Davies
did object to one of the questions, and Hudson reworded the question so
that Davies could answer it honestly. Further, Hudson testified that in administering
a polygraph, his duty is to the examinee to ensure that the test
results are accurate. Davies points to no conduct on the part of
Hudson that would call into question his integrity in administering the test.
We see nothing in this procedure to undermine our confidence in the test
results. Further, under
Sanchez, the trial courts decision to admit the results
of a polygraph examination is reviewed for an abuse of discretion. The
trial court did not abuse its discretion in admitting the test results here.
Davies also asserts that his physical and emotional state at the time of
the polygraph examination was not conducive to obtaining accurate results. He notes
that he had been with police for nearly six hours at the time
of the exam, that he had slept only six hours the previous night,
that he had not eaten since dinner the night before, and that his
girlfriend and her daughter, K.S., had just been in an accident which claimed
Davies had been with police for almost six hours at the time of
the polygraph by choice. He contacted police and insisted on speaking with
them about the investigation. He was never under arrest and was free
to leave at any time. In fact, he did go outside the
Sheriffs Department building unescorted during the day to smoke. Further, his involvement
with police was prolonged by the polygraph examination which he requested and could
have refused or stopped at any time. The officers offered Davies food
and drink periodically throughout the day, but he declined. Even so, they
did not eat in front of him; Kneeland and Hutchins ate lunch while
Hudson administered the polygraph examination. Overall, we do not feel that these
circumstances are so overwhelming as to cause the results of the polygraph exam
to be unreliable.
Davies next contends that the trial court erred in admitting his post-polygraph statements.
He claims that those admissions were not voluntary. In doing so,
he argues that the statements were made after he was deceived about whether
he had passed the polygraph test. Further, he claims that there were
numerous signs of coercion including, among others, the fact that he did not
consult an attorney, that Hudson interviewed him after the polygraph examination, and that
Hudson spoke to him reassuringly, used threats, and promised to speak with the
court about Davies if he cooperated.
After the polygraph test concluded, Hudson examined the results of the polygraph and
determined that Davies was not being truthful. He told Davies about his
interpretation of the results and asked Davies again if he had sexually touched
K.S. At that point, Davies admitted to one such incident. After
retracting his statement, Davies reconfirmed his original statement that he had molested K.S.
He repeated this admission while being transported back to Parke County by
Kneeland and Hutchins.
Hudson testified that he examined the polygraph charts, and in his opinion, Davies
was not being truthful. He also testified that a post-polygraph interview is
customary when the subject fails the exam. Thus, he was following standard
procedures in questioning Davies after the exam. Although Daviess experts testified that
Davies passed the polygraph examination, the States witnesses opined otherwise. This discrepancy
was for the trier of fact to evaluate and does not indicate any
bad faith on Hudsons part in questioning Davies after the examination. Further,
our review of the record persuades us that Hudson did no more than
politely confront Davies with the information that he had failed the polygraph and
asked about his sexual involvement with K.S. We see no coercive actions
that would render Daviess statement involuntary.
There was no error in admitting Daviess post-polygraph statements. By this point
in the day, he had been read his
Miranda rights multiple times and
had elected to speak with the officers involved with the case without the
benefit of representation by counsel. Further, Kneeland and Hutchins testified that Davies
was not under arrest at any time prior to their return to Parke
County, where they met another vehicle and transferred Davies to it for the
trip to the jail. Thus, it is not clear that Miranda warnings
were even required. Nonetheless, they were given, and there is no reason
not to admit Daviess post-polygraph statements.
V. Sufficiency of evidence
Davies claims there is insufficient evidence to support both of his convictions for
Class A child molesting. When reviewing a claim of insufficient evidence, we
neither reweigh the evidence nor judge the credibility of the witnesses. Smith
v. State, 688 N.E.2d 1289, 1290 (Ind. Ct. App. 1997). We look only
to the evidence and the reasonable inferences therefrom that support the verdict.
Ajabu v. State, 704 N.E.2d 494, 495 (Ind. Ct. App. 1998). We will
affirm a conviction if there is substantial evidence of probative value from which
the trier of fact could find the defendant guilty beyond a reasonable doubt.
Id. Reversal is mandated where, after reviewing such evidence, the reviewing
court concludes that no reasonable trier of fact could conclude that the defendant
was guilty beyond a reasonable doubt. Joyner v. State, 678 N.E.2d 386,
390 (Ind. 1997).
Davies was convicted of Class A child molesting by performing sexual intercourse with
K.S. and by deviate conduct, specifically, placing his finger inside K.S.s vagina.
IC 35-42-4-3 defines child molesting as performing or submitting to sexual intercourse or
deviate sexual conduct with a child under fourteen years of age. IC
35-41-1-26 defines sexual intercourse as an act that includes any penetration of the
female sex organ by the male sex organ. Deviate sexual conduct means
an act involving: (1) a sex organ of one person and the mouth
or anus of another person; or (2) the penetration of the sex organ
or anus of a person by an object. IC 35-41-1-9. Dr.
Roland Kohr, the pathologist who performed the autopsy on K.S.s body, testified that
his examination revealed a dilated rectum and hymeneal ring with no evidence of
recent trauma. He testified that the anal enlargement was suspicious, but could
have been caused either by natural relaxation following death or by penetration by
an object. However, Dr. Kohr further testified that he found that K.S.
had no hymeneal membrane. He opined that the obliterated hymen in a
child so young was very strong evidence of sexual abuse and was caused
by the insertion of an object larger than one centimeter in diameter into
During Deputy Kneelands initial interview with Davies, Kneeland asked him directly if he
had sexually abused K.S. Davies admitted that it just happened one time.
Davies then failed a polygraph examination designed to determine if he was
being truthful in denying any sexual contact with K.S. The most damaging
admission, however, came during the post-polygraph interview. After Hudson told Davies he
had failed the polygraph, Davies stated that the incident had occurred in late
August on a Friday or Saturday night. Davies told Hudson that he
and Stinson had been at a party where he drank several beers.
He and Stinson went home and went to sleep. K.S., initially asleep
in her room, came into the room where Davies and Stinson were sleeping
and went to sleep on the floor. Davies woke up and lay
down on the floor next to K.S. Davies stated that he put
his hand under her diaper and stuck his finger in her vagina.
He admitted that he was sexually aroused at the time. When Hudson
asked if he placed his penis into K.S.s vagina, he stated either yes
anything could have happened,
Record at 1322 (Hudson testimony), or it was possible.
Record at 1390, 1457 (Kneeland & Hutchins testimony). He denied inserting
anything into K.S.s rectum. Davies repeated his admission in the car during
the trip back to Parke County.
We find this evidence sufficient to support Daviess conviction of child
molesting by placing his finger in K.S.s vagina. However, the evidence is
insufficient to support his conviction of child molesting by sexual intercourse. Dr.
Kohrs testimony does not establish that the object that caused the obliteration of
K.S.s hymen was a penis, and the only evidence suggesting that Davies had
intercourse with K.S. is Daviess comment that it could have happened or it
was possible. Such evidence is of not of substantial probative value to
support Daviess conviction. We therefore reverse Daviess conviction as to child molesting
by committing sexual intercourse.
VI. Double jeopardy
Davies argues that his convictions for Class A child molesting and Class C
child molesting violate the prohibition against double jeopardy, or being punished twice for
the same offense. Two or more offenses are the same offense in
violation of Article I, Section 14 of the Indiana Constitution, if, with respect
to either the statutory elements of the challenged crimes or the actual evidence
used to convict, the essential elements of one challenged offense also establish the
essential elements of another challenged offense. Richardson v. State, 717 N.E.2d 32,
49-50 (Ind. 1999). Davies concedes that his convictions do not violate the
first prong of Richardson, the same elements test, so we proceed to the
second: the actual evidence test. The actual evidence test requires us to
look at the evidence presented at trial to determine whether each challenged offense
was actually established by separate, distinct facts. Id. at 53.
Dual convictions cannot stand if a defendant demonstrate[s] a reasonable probability that the
evidentiary facts used by the fact-finder to establish elements of one offense may
also have been used to establish the essential elements of a second challenged
Wise v. State, 719 N.E.2d 1192, 1201 (Ind. 1999)(quoting Richardson, 717
N.E.2d at 53). In this case, Davies was convicted of one count
of child molesting based on sexual intercourse, one count of child molesting based
on criminal deviate conduct, and one count of child molesting based on fondling.
Because we reverse Daviess conviction on the count alleging sexual intercourse, we
need not analyze it under double jeopardy principles. Thus, we are left
with the issue of whether his convictions for child molesting by criminal deviate
conduct and by fondling constitute double jeopardy.
In this case, there is a reasonable probability that the jury used the
same evidence to convict Davies of both molesting by fondling and molesting by
criminal deviate conduct. Davies stated that there was one incident in late
August 1998 during which he placed his finger inside K.S.s diaper and inserted
his finger in her vagina. There was no independent evidence of fondling.
Therefore, we hold that Daviess convictions for both molesting by fondling and
molesting by criminal deviate conduct violate the prohibition against double jeopardy. Thus,
we reverse Daviess conviction for child molesting by fondling as a Class C
See Kochersperger v. State, 725 N.E.2d 918 (Ind. Ct. App. 2000) (vacating
conviction for child molesting by fondling where defendant was also convicted of child
molesting by deviate conduct for single incident of child molesting).
The trial court sentenced Davies to fifty years imprisonment,
the maximum possible sentence.
Davies argues that the trial court erred in failing to find no
mitigating circumstances. Specifically, he alludes to the facts that he had no
prior criminal history and was known throughout his community for being a hardworking
and honest person. He claims that the trial courts failure renders his
sentence manifestly unreasonable.
Trial courts are granted broad discretion in imposing sentences, and we will reverse
a sentencing decision only for an abuse of that discretion.
State, 693 N.E.2d 649, 652 (Ind. Ct. App. 1998). A trial courts
wide discretion extends to the determination of whether to increase presumptive penalties, impose
consecutive sentences on multiple convictions, or both. Madden v. State, 697 N.E.2d
964, 967 (Ind. Ct. App. 1998), trans. denied. When a sentence is
enhanced or consecutive sentences are imposed, the trial court must set forth a
statement of its reasons for selecting a particular punishment. Id. We
will examine both the written sentencing order and the trial courts comments at
the sentencing hearing to determine whether the trial court adequately explained the reasons
for the sentence. Newsome v. State, 654 N.E.2d 11, 13 (Ind. Ct.
App. 1995), trans. denied.
The trial court is solely responsible for determining the appropriate weight to accord
aggravating and mitigating factors in sentencing.
Shields v. State, 523 N.E.2d 411,
414 (Ind. 1988). Even where the trial court considers improper aggravators in
imposing a sentence, the sentence will be affirmed if it is otherwise supported
by a legitimate aggravator. Spivey v. State, 638 N.E.2d 1308, 1313 (Ind.
Ct. App. 1994). A single aggravator is sufficient to support the imposition
of enhanced or consecutive sentences. Id.
The finding of mitigating circumstances is within the discretion of the trial court.
Hackett v. State, 716 N.E.2d 1273, 1277-78 (Ind. 1999) (citing Legue v.
State, 688 N.E.2d 408, 411 (Ind. 1997)). An allegation that the trial
court failed to identify or find a mitigating circumstance requires the defendant to
establish that the mitigating evidence is both significant and clearly supported by the
record. Id. (citing Carter v. State, 711 N.E.2d 835, 838 (Ind. 1999)).
The trial court is not obligated to accept the defendants contentions as
to what constitutes a mitigating circumstance. Id.
In this case, the trial court found the following aggravators: that Davies
was lacking in character; that there was a risk that Davies would commit
another crime; that the victim was in a position of trust with Davies;
and that Davies had pending charges and other uncharged acts of sexual misconduct
with a minor.
IC 35-38-1-7.1 requires the trial court to consider the risk that the defendant
will commit another crime in imposing a sentence. Further, a defendants record
of arrests may be relevant to the trial courts assessment of the defendants
character in terms of the risk that he will commit another crime.
Bluck v. State, 716 N.E.2d 507, 513-14 (Ind. Ct. App. 1999) (citing Taylor
v. State, 695 N.E.2d 117, 121 (Ind. 1998)). In assessing a defendants
criminal history and enhancing a sentence, a sentencing court may consider pending charges
and uncharged crimes. Flinn v. State, 563 N.E.2d 536, 544 (Ind. 1990)
(citing Jordan v. State, 512 N.E.2d 407 (Ind. 1987)); Bluck, 716 N.E.2d at
513-14 (citing Fourthman v. State, 658 N.E.2d 88, 92 (Ind. Ct. App. 1995),
trans. denied (1996)). The trial court properly cited Daviess criminal record as
an aggravator and properly evaluated the risk that Davies would commit another crime
by referring to his pending charges and uncharged misconduct.
The trial court also cited as an aggravator that Davies was in a
position of trust with K.S. Being in a position of trust with
the victim is a valid aggravating circumstance.
Bacher v. State, 722 N.E.2d 799,
802 n.5 (Ind. 2000). Our supreme court has affirmed a finding that
a live-in boyfriend is in a position of trust with regard to the
children of his live-in girlfriend. See, e.g., Martin v. State, 535 N.E.2d
493, 498 (Ind. 1989). Thus, the trial court properly used this aggravator
Davies, however, cites the trial courts failure to find his lack of criminal
record and his good character as mitigators. As we have already noted,
for purposes of sentencing, it is inaccurate to claim that Davies had no
criminal record. Further, while Davies refers us to the evidence at his
sentencing hearing of his good character, including the testimony of his employer, parents,
and neighbors, he ignores the fact that the evidence on this issue was
conflicting. There was evidence that he attempted to have sexual intercourse with
Stinson in front of two-year-old K.S., that he asked K.S. to perform a
sex act on Stinson, that he was involved with a fourteen-year-old girl, and
that he was involved with a fifteen-year-old girl, including having sex with her
while Stinson was present. The evidence of Daviess good character was not
clearly supported by the record, was conflicting at best, and the trial court
was entitled to weigh the evidence as it saw fit. The trial
court did not err in failing to find Daviess good character as a
mitigating circumstance. Further, in light of the nature of the offense and
the character of the offender, we do not believe that Daviess sentence was
plainly, clearly, and obviously unreasonable.
Affirmed in part and reversed in part.
BAKER, J., and RILEY, J., concur.
See IC 35-42-4-3.
Because we reverse Daviess convictions on count I and count
III on other grounds, we address only his sentence on count II here.