Charles R. Strunk v. State of Indiana , 2015 Ind. App. LEXIS 629 ( 2015 )

Sep 15 2015, 8:40 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
David A. Smith Gregory F. Zoeller
McIntyre & Smith Attorney General of Indiana
Bedford, Indiana
Chandra K. Hein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Charles R. Strunk, September 15, 2015
Appellant-Defendant, Court of Appeals Case No.
47A01-1411-CR-487
v. Appeal from the Lawrence Superior
Court;
The Honorable William G. Sleva,
State of Indiana, Judge;
Appellee-Plaintiff. 47D02-1305-FA-560
May, Judge.
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[1] Charles R. Strunk appeals his conviction of two counts of sexual misconduct
with a minor, one as a Class A felony 1 and the other as a Class B felony. 2
Strunk argues the trial court abused its discretion when it limited Strunk’s cross-
examination of J.B., admitted Strunk’s Facebook message to J.B., and admitted
only an excerpt of Strunk’s statement to the police. We affirm.
Facts and Procedural History
[2] J.B. and her family lived in Heltonville, Indiana until J.B. was in sixth grade.
While in Heltonville, J.B. became a close friend of Strunk’s daughters, and the
Strunk family became friendly with J.B.’s family. After J.B.’s father passed
away, J.B. and her family moved to Mitchell, Indiana, where Strunk, his wife,
and their daughters would visit J.B. and her family.
[3] On May 8, 2013, fifteen-year-old J.B. exchanged Facebook messages with
Strunk. She testified, “I was wanting him to take me mushroom hunting.” (Tr.
at 52.) Strunk told J.B. that he would take her mushroom hunting at some
point. Around 5:00 p.m. that day, Strunk arrived at J.B.’s house unexpectedly.
Around 6:00 p.m., Strunk and J.B. decided to walk through the woods behind
J.B.’s house to look for mushrooms.
[4] The two came to the bottom of a hill and J.B. sat down on some rocks. Strunk
stood next to J.B., then “pull[ed] out a green piece of paper and a knife and he
1
Ind. Code § 35-42-4-9(a)(2) (2007).
2
Ind. Code § 35-42-4-9(a)(1) (2007).
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starts reading the stuff on the paper.” (Id. at 60.) Stunk held up the knife and
told J.B. to remove her clothes. J.B. complied and Strunk then pulled out a
Sharpie pen and began writing symbols on J.B.’s chest, stomach, lower
stomach, and inner thighs. Strunk then began to perform oral sex on J.B.
Strunk stopped, stood up, and told J.B. that it was her turn. He took off his
pants and underwear and forced J.B. to perform oral sex on him. After five
minutes, J.B. heard her sister screaming her name. J.B. told Strunk that she
needed to check on her sister. She put her clothes on and walked toward her
house.
[5] Once J.B. and Strunk reached the backyard, Strunk began to have a seizure.
J.B. testified Strunk had multiple seizures that day. Strunk remained at J.B.’s
house until he recovered later that night. J.B.’s mother called Strunk’s wife,
Sally, and told her about the seizures. Sally testified Strunk did not want
medical attention and she was not able to take Strunk home. She asked J.B.’s
mother to send Strunk home when the seizures were over. Around 11:00 p.m.,
Strunk went to his car. He sat in his car for an hour, then left around midnight.
[6] After Strunk left, he sent J.B. a Facebook message::
im sorry about what happened. But if yoi possibly can we need to
finish the ritual. Untill we do i must suffer the aftermath of it all. That
is what caused the seizures. And it will only get worse from there. So
please save me from this suffering. Please I beg of you.
(State’s Ex. 19) (spelling errors in original). At this point, J.B. “curled up in a
ball on the [kitchen] island crying her eyes out shaking back and forth.” (Tr. at
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325.) After a few minutes, J.B. calmed down and reported Strunk had molested
her in the woods. Her mother called Sally, informed her of J.B.’s allegations
against Strunk, and advised Sally that she intended to call the police. She then
called the police.
[7] Lawrence County Police Department (LCPD) officers Justin Shirley and
Jerome Hettle responded to the call. The Officers took photographs of the
markings on J.B.’s torso and legs and the message from Strunk. Hettle and
Shirley called LCPD Detective Phil Wigley.
[8] J.B. was taken to a hospital and examined by Melissa Mitchell, a registered
nurse certified as a “sexual assault nurse examiner.” (Id. at 318.) Mitchell
collected physical evidence, including photographs of the markings and a rape
kit. Heather Crystal, a forensic biologist with the State Police, performed Y-
STR analysis of DNA found on J.B. 3 Crystal could not exclude Strunk and all
his male relatives as being contributors of that DNA.
[9] Detective Wigley tried to contact Strunk by cell phone but was unsuccessful.
An arrest warrant was issued and after Strunk’s arrest Detective Wigley
interviewed him. The State charged Strunk with Class A felony sexual
misconduct with a minor and Class B felony sexual misconduct with a minor.
3
Y-STR analysis “is the DNA analysis from the ‘Y’ chromosome which is found only in males. It’s passed
on directly from a father to his son.” (Tr. at 483.)
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A jury found Strunk guilty as charged, and the trial court entered judgments of
conviction.
Discussion and Decision
[10] We typically review admission of evidence for an abuse of discretion. King v.
State, 985 N.E.2d 755, 757 (Ind. Ct. App. 2013), trans. denied. Thus, we reverse
only if the trial court’s decision is clearly against the logic and effect of the facts
and circumstances before it. Id. We will not reweigh the evidence, and we will
consider conflicting evidence in favor of the trial court’s ruling. Id. However,
we must also consider uncontested evidence favorable to the defendant. Id. A
trial court ruling will be upheld if it is sustainable on any legal theory supported
by the record, even if the trial court did not use that theory. Rush v. State, 881
N.E.2d 46, 50 (Ind. Ct. App. 2008). Error in the admission or exclusion of
evidence is to be disregarded as harmless unless it affects the substantial rights
of a party. Id.Limitation of Cross-Examination
[11] The right to cross-examine witnesses is guaranteed by the Sixth Amendment of
the United States Constitution and Article I section 13 of the Indiana
Constitution. “The conduct of cross-examination is within the discretion of the
trial court, and only a total denial will result in an error of constitutional
proportion.” Stonebraker v. State, 505 N.E.2d 55, 58 (Ind. 1987), reh’g denied.
“Anything less than a total denial is viewed as a regulation of the scope of
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cross-examination by the trial court, and will be reviewed for an abuse of
discretion.” Id. at 59.
[12] Strunk argues the trial court should have allowed him to cross-examine J.B.
about her marijuana usage the night of the molestation. “Evidence of a victim’s
drug use is generally irrelevant except in relation to the victim’s mental capacity
to recall the crime and testify about it.” Pannell v. State, 686 N.E.2d 824, 826
(Ind. 1997). “The credibility of a witness may be attacked by showing a defect
of capacity in the witness to observe, remember or recount the matters testified
about.” Lusher v. State, 390 N.E.2d 702, 704 (Ind. Ct. App. 1979), reh’g denied.
[13] Outside the presence of the jury, Strunk examined J.B. as part of his offer of
proof. J.B. testified that, after the molestation occurred, she went with her
mother to a gas station where a friend gave her a single marijuana cigarette.
J.B. recalled that she did not smoke it until after the police were called, which
was six to seven hours after the molestation. J.B. testified her account of the
molestation was accurate and smoking a single marijuana cigarette in no way
affected her ability to remember the molestation.
[14] There is no evidence J.B.’s smoking of a single marijuana cigarette six to seven
hours after the molestation impaired her perception, ability to remember, or
ability to testify about the molestation. See id. (drug use may not be used to
attack the credibility of a witness unless evidence tends to show witness was
under the influence of drugs either at the time of trial or at the time of the events
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testified to). The trial court did not abuse its discretion by limiting Strunk’s
cross-examination of J.B.
Facebook Message
[15] Strunk argues the trial court abused its discretion when it admitted a message
he sent to J.B. via Facebook because the State did not properly authenticate the
message. “To satisfy the requirement of authenticating or identifying an item of
evidence, the proponent must produce evidence sufficient to support a finding
that the item is what the proponent claims it is.” Ind. Evid. R. 901.
Authentication of an exhibit can be established by either “direct or
circumstantial evidence.” Newman v. State, 675 N.E.2d 1109, 1111 (Ind. Ct.
App. 1996). Testimony that an item is what it is claimed to be, by a witness
with knowledge, is sufficient to authenticate an item. Evid. R. 901. Distinctive
characteristics like “the appearance, contents, substance, [and] internal
patterns” taken together with all the circumstances is another way to
authenticate an item of evidence. Id. “Any inconclusiveness regarding the
exhibit’s connection with the events at issue goes to the exhibit’s weight, not its
admissibility.” Pavlovich v. State, 6 N.E.3d 969, 976 (Ind. Ct. App. 2014), trans.
denied.
[16] During J.B.’s testimony, the trial court admitted screen shots of Strunk’s
Facebook profile and his message to J.B. J.B. testified that she had
communicated with Strunk through the same profile page on previous
occasions. She knew it was Strunk’s page because Strunk’s profile picture was a
wolf and the screen shot in Exhibit 18 contained the same picture. J.B. knew
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the screen shot was Strunk’s Facebook profile because they had two mutual
friends listed on Strunk’s page, one of which was her mother. J.B.’s mother
also identified Exhibit 18 as a screen shot of Strunk’s Facebook profile and
verified that she was one of Strunk’s mutual friends.
[17] J.B. testified Strunk left her house around midnight and that after Strunk left,
J.B. received his message through the same Facebook page she had used to
communicate with Strunk earlier that day. The trial court properly admitted
the Facebook message. See id. at 977 (showing that the message originated with
the alleged sender’s personal cell phone, under circumstances in which it is
reasonable to believe that only the alleged sender would have had access,
creates a reasonable probability the item is authentic), trans. denied.
Strunk’s Statement to Police
[18] The trial court did not abuse its discretion when it refused to admit the entire
recording of a conversation between Strunk and Detective Wigley. 4 During
trial, the State asked Detective Wigley about Strunk’s interview with the police
on May 17, 2013. After the State’s direct examination, Strunk asked to make
4
In Strunk’s reply brief, Strunk said the State misapprehended his argument in his opening brief and that the
“actual argument on appeal . . . is that the trial court erred when it refused to permit Strunk to cross-examine
Wigley about the whole conversation he had with Strunk.” (Reply Br. of Appellant at 14) (emphasis on
original). In his Brief of Appellant, Struck stated:
The final issue before the Court is whether the trial court erred when it refused to admit
the entire recording of a conversation between Strunk and lead investigator Phil Wigley
after Wigley testified misleadingly about the whole conversation, omitting key aspects.
This decision is erroneous under both Evidence Rule 106 and the common-law doctrine
of completeness.
(Br. of Appellant at 37.)
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an offer of proof because he wanted to cross-examine Detective Wigley about
the interview, specifically about Strunk’s report during the interview that J.B.
had a motive to lie because she allegedly was upset that Strunk threw out her
bag of marijuana. The trial court reasoned that because Strunk’s interview was
recorded or reduced to writing and because Strunk could admit that recording if
he wished his assertion admitted, Strunk could not cross-examine Detective
Wigley about the matter.
[19] Strunk called Detective Wigley as a witness during his case-in-chief but did not
try to admit the existing recording. Later, during the State’s rebuttal, the State
called Detective Wigley to the stand again and he testified about another
portion of his conversation with Strunk on May 17, 2013. The State submitted
Exhibit 31, which was an excerpt from the videotaped interview between
Detective Wigley and Strunk on May 17, 2013, wherein Strunk said he had
accidentally left his phone in his residence on the day in question. In response
to the State’s offer of this excerpt, Strunk affirmatively stated, “No objection,”
and the excerpt was admitted. (Tr. at 605.)
[20] Strunk waived any alleged error in the entire videotaped statement not being
admitted when he affirmatively stated he had no objection to a portion of the
videotaped statement that was admitted. See Hayworth v. State, 904 N.E.2d 684,
693-694 (Ind. Ct. App. 2009) (“By stating ‘No objection,’ we find that
Hayworth has waived her objection to that evidence.”) Strunk did not renew
his objection, ask for a continuing objection, or maintain his position in any
way.
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[21] Notwithstanding the waiver, the admission of the excerpt was not error.
Evidence Rule 106 states: “If a party introduces all or part of a writing or
recorded statement, an adverse party may require the introduction, at that time,
of any other part – or any other writing or recorded statement – that in fairness
ought to be considered at the same time.” Ind. Evid. R. 106. “Evid. R. 106 is
designed to avoid misleading impressions caused by taking a statement out of
its proper context or otherwise conveying a distorted picture by the introduction
of only selective parts.” Liebetenz v. State, 717 N.E.2d 1242, 1248 (Ind. Ct. App.
1999), trans. denied. If portions do not explain or are irrelevant to the portions
already introduced, a court is not required to admit the remainder of the
statement. Id. The remainder of the statement or document is subject to the
general rules of admissibility and portions found to be immaterial, irrelevant, or
prejudicial should not be admitted. Brown v. State, 728 N.E.2d 876, 878 (Ind.
2000), abrogated on other grounds by Fajardo v. State, 859 N.E. 2d 1201, 1206-1207
(Ind. 2007).
[22] Strunk has not argued that the admitted excerpt gave the jury a misleading
impression that would have been corrected by the admission of the entire
statement. 5 The only thing that Strunk talked about on the admitted excerpt
was his leaving his phone at his residence on the day in question. As there was
5
Instead, Strunk asserts “the entire statement would have cast doubt on J.B.’s credibility, and it would have
shown that J.B. had a motive to fabricate her allegations.” (Br. of Appellant at 42.) However, as the
admitted excerpt did not involve discussion of J.B.’s motive, there was no misimpression to “correct” by
admitting the remainder of the recording. Thus, Evidence Rule 106 did not require the remainder be
admitted on that basis.
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no “misleading impression” created by the admission of the excerpt, the trial
court was within its discretion to decline to admit the entire recording. See
Liebetenz, 717 N.E.2d at 1248.
Conclusion
[23] The trial court did not abuse its discretion when it limited Strunk’s cross-
examination of J.B., admitted Strunk’s Facebook message to J.B., or admitted
only an excerpt of Strunk’s statement to the police. We accordingly affirm.
[24] Affirmed.
Robb, J., and Mathias, J., concur.
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