Daniel A. Greer v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Nov 15 2018, 10:29 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Matthew J. McGovern Curtis T. Hill, Jr.
Anderson, Indiana Attorney General of Indiana
Laura R. Anderson
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Daniel A. Greer, November 15, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-625
v. Appeal from the Gibson Superior
Court
State of Indiana, The Honorable Robert Krieg,
Appellee-Plaintiff Judge
Trial Court Cause No.
26D01-1707-F5-688
Altice, Judge.
Case Summary
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[1] Following a jury trial, Daniel A. Greer was convicted of child seduction as a
Level 5 felony and sentenced to three years. On appeal, Greer presents two
issues for our review, which we restate as the following:
1. Did the trial court improperly instruct the jury on
uncharged offenses?
2. Is the evidence sufficient to support his conviction?
3. Did the admission of evidence relating to Greer’s character
and prior bad acts amount to fundamental error?
[2] We affirm.
Facts & Procedural History
[3] J.E., born in September of 2000, was a middle school student when he first met
Greer, a school resource officer at the school J.E. attended. Greer and J.E.
spoke mostly at lunch, but Greer also went to some of J.E.’s classes where they
would talk and socialize. During his eighth-grade year, J.E. was a teacher’s
aide and when the class he worked in was out of the classroom, Greer would
often come in and socialize with J.E. J.E. trusted Greer and viewed him as a
friend and as someone “to communicate with if [he] ever needed anybody.”
Transcript Vol. II at 174. On one occasion, Greer “stood up” for J.E. when J.E.
was on an overnight school trip in eighth grade. Id. On another occasion,
Greer asked J.E. to help him in an official capacity by assisting with an
investigation into whether a gas station would sell alcohol to minors. This
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investigation, however, never materialized. J.E. felt like Greer sought him out
and spoke to him more than to other students.
[4] When J.E. was sixteen years old and in high school and Greer was in his late
twenties, they began communicating via social media applications such as
Facebook, Kik, Snapchat, and Grindr. Initially, Greer and J.E. started
messaging through Facebook, where they “got to know each other better” and
“talked pretty deeply in conversation.” Id. at 177. Their conversations “did
lead to a relationship” that was “mostly sexual,” so they began using the Kik
application because it was more difficult to track and trace their messages. Id.
Greer and J.E. discussed having sex “pretty seriously.” Id.
[5] Late one night in January or February of 2017, when J.E. was still sixteen years
old, Greer came to J.E.’s mother’s house, where J.E. was staying that night by
himself. Greer parked down the street and entered the house through the
garage. Greer and J.E. made their way to J.E.’s bedroom, where Greer
performed oral sex on J.E. They later talked about their encounter on Kik, but
never discussed it at school. Greer continued to contact J.E. about sex, but J.E.
did not respond and mostly ignored Greer’s subsequent messages.
[6] At some point, a teacher notified another school resource officer about an
allegation that Greer had had an inappropriate relationship with a female
student at the high school. During the ensuing investigation, a detective
contacted J.E. J.E. “started freaking out a little bit,” so he called Greer to ask
him what to say and do. Id. at 180. Greer encouraged J.E. not to tell anyone
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about what had happened and told him that they could come up with a story to
cover up what had occurred between them. At that time, J.E. “had a lot of
feelings” for Greer and did not want to see Greer lose his job, so he lied to the
detective. Id. J.E. eventually told law enforcement about his sexual encounter
with Greer.
[7] On July 24, 2017, the State charged Greer with Level 5 felony child seduction
under Ind. Code § 35-42-4-7(n), and the charge alleged that Greer was a child
care worker for J.E.1 On November 16, 2017, the Stated filed an amended
information adding the allegation that Greer was a law enforcement officer,
adjusting the dates of the offense, and adding a statutory citation to I.C. § 35-
42-4-7(d)(1), (2), and (3), which defined the term “child care worker” for
purposes of the child seduction statute. The State filed additional, amended
charging informations on January 2 and 5, 2018, to add statutory citations to
subsections (o) and (m) of I.C. § 35-42-4-7, respectively, of the child seduction
statute. Greer was advised of each amendment to the charging instrument and
made no objection thereto. A jury trial was held on January 10 and 11, 2018.
In its final instructions, the trial court instructed the jury on the elements the
State was required to prove under each of the three alternate theories of liability
found under subsections (m), (n), and (o). In final instructions four, five, and
six, the trial court defined the terms “child care worker” as used in subsection
(m), “professional relationship” as used in subsection (n), and “law
1
The citation for child seduction by a child care worker should have been to subsection (m).
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enforcement officer” as used in subsection (o), respectively. Greer did not
object to any of the final instructions. Using a general verdict form, the jury
found Greer guilty as charged. On February 14, 2018, the trial court sentenced
Greer to three years. Additional facts will be provided as necessary.
Discussion & Decision
1. Final Instructions
[8] As pertinent here, I.C. § 35-42-4-7 defines child seduction under separate
subsections as follows:
(m) If a person who:
(1) is at least eighteen (18) years of age; and
(2) is the:
***
(B) child care worker for;
a child at least sixteen (16) years of age but less than eighteen (18)
years of age;
engages with the child in sexual intercourse, other sexual conduct
(as defined in IC 35-31.5-2-221.5), or any fondling or touching
with the intent to arouse or satisfy the sexual desires of either the
child or the adult, the person commits child seduction.
(n) A person who:
(1) has or had a professional relationship with a child at
least sixteen (16) years of age but less than eighteen (18)
years of age whom the person knows to be at least sixteen
(16) years of age but less than eighteen (18) years of age;
(2) may exert undue influence on the child because of the
person’s current or previous professional relationship
with the child; and
(3) uses or exerts the person’s professional relationship to
engage in sexual intercourse, other sexual conduct (as
defined in IC 35-31.5-2-221.5), or any fondling or touching
with the child with the intent to arouse or satisfy the sexual
desires of the child or the person;
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commits child seduction.
(o) A law enforcement officer who:
(1) is at least five (5) years older than a child who is:
(A) at least sixteen (16) years of age; and
(B) less than eighteen (18) years of age;
(2) has contact with the child while acting within the scope
of the law enforcement officer’s official duties with respect
to the child; and
(3) uses or exerts the law enforcement officer’s professional
relationship with the child to engage with the child in:
(A) sexual intercourse;
(B) other sexual conduct (as defined in IC 35-31.5-2-
221.5); or
(C) any fondling or touching with the child with the
intent to arouse or satisfy the sexual desires of the
child or the law enforcement officer;
commits child seduction.
Here, the final, amended charging information states:
Daniel A. Greer, DOB: 02/18/1987, being at least eighteen (18)
years of age, and the child care worker/law enforcement officer
for J.E. (victim), . . . a child at least sixteen (16) years of age but
less than eighteen (18) years of age, during the months of
January/February, 2017 in the County of Gibson, State of
Indiana, did knowingly or intentionally engage with J.E. (victim)
in sexual intercourse, or other sexual conduct (as defined in
IC§35-31.5-2-221.5), or any fondling or touching with the intent
to arouse or satisfy the sexual desires of J.E. (victim) or Daniel
A. Greer (defendant),
All contrary to the form of the statute in such cases made and
provided, to to-wit: §35-42-4-7(d)(1), (2), (3); §35-42-4-7(m); §35-
42-4-7(n); § 35-42-4-7(o) and 35-42-4-7(q)(2), Child Seduction, a
Level 5 Felony.
Appellant’s Appendix Vol. II at 54 (emphasis omitted).
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[9] Acknowledging that he did not object at trial, Greer argues that the trial court
“issued fundamentally erroneous final jury instructions.” Appellant’s Brief at 7.
Our Supreme Court has described the fundamental error standard as a
“daunting” one, applicable only in egregious circumstances. Knapp v. State, 9
N.E.3d 1274, 1281 (Ind. 2014). “To qualify as fundamental error, ‘an error
must be so prejudicial to the rights of the defendant as to make a fair trial
impossible’ and must ‘constitute a blatant violation of basic principles, the harm
or potential for harm must be substantial, and the resulting error must deny the
defendant fundamental due process.’” Absher v. State, 866 N.E.2d 350, 355
(Ind. Ct. App. 2007) (quoting Benson v. State, 762 N.E.2d 748, 755 (Ind. 2002)).
The fundamental error exception is extremely narrow and “reaches only errors
that are so blatant that the trial judge should have taken action sua sponte.” Id.
[10] Greer does not argue that the instructions contained an incorrect statement of
the law or otherwise misled the jury. Rather, Greer claims that the trial court
erroneously instructed the jury on uncharged offenses. Specifically, Greer
asserts that he was charged only with the offense of child seduction under
subsection (m), and therefore, the final instructions to the jury regarding the
other two manners in which the offense of child seduction can be committed as
defined under subsections (n) and (o) were erroneous. Greer argues that he was
not charged under subsections (n) and (o) because some of the elements of those
offenses under the statute were not recited in the charging information.
[11] We first consider the charging information. “The purpose of the charging
information is to provide a defendant with notice of the crime of which he is
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charged so that he is able to prepare a defense.” Gilliland v. State, 979 N.E.2d
1049, 1060 (Ind. Ct. App. 2012) (quoting State v. Laker, 939 N.E.2d 1111, 1113
(Ind. Ct. App. 2010), trans. denied); see also Ind. Code § 35-34-1-2(a) (setting
forth the requirements for a charging information). “The State is not required
to include detailed factual allegations in a charging information.” Laney v.
State, 868 N.E.2d 561, 567 (Ind. Ct. App. 2007), trans. denied. “An information
that enables an accused, the court, and the jury to determine the crime for
which conviction is sought satisfies due process. Errors in the information are
fatal only if they mislead the defendant or fail to give him notice of the charge
filed against him.” Dickenson v. State, 835 N.E.2d 542, 550 (Ind. Ct. App. 2005)
(citations and quotation marks omitted), trans. denied. “[W]here a charging
instrument may lack appropriate factual detail, additional materials such as the
probable cause affidavit supporting the charging instrument may be taken into
account in assessing whether a defendant has been apprised of the charges
against him.” Laker, 939 N.E.2d at 1113.
[12] Here, we find that the charging information afforded Greer adequate notice that
he was charged with child seduction under three different subsections.
Although the charging information did not set out all of the elements of the
offenses in subsections (n) and (o), it did include correct statutory citations to
those provisions and otherwise identified the timing, the victim, and conduct
giving rise to the charge.
[13] Further, Greer does not, and indeed cannot, argue that he was misled or left
unable to prepare a defense to what he now claims were uncharged offenses.
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During opening statements, Greer admitted that there was a sexual relationship
between him and J.E., but argued that such relationship was consensual and
not a result of Greer’s use of his position of authority, which is a required
element of the offense under subsections (n) and (o). During cross-
examination, Greer continued with his defense, seeking clarification from
witnesses as to his status as a law enforcement officer and the nature of his role
as a school resource officer, which responses he later referenced as evidence
negating some of the elements of subsections (n) and (o). During closing
argument, Greer parsed the elements of the child seduction offenses under each
subsection and urged the jury to find that the evidence did not support a finding
that he used his position of authority, either as a police officer or through a
professional relationship, to exert undue influence over J.E. to engage in the
sexual relationship with J.E. Having concluded that Greer was charged with
child seduction under subsections (m), (n), and (o), the trial court did not
commit error, let alone fundamental error, in instructing the jury as to the
elements of each of those offenses.
2. Sufficiency
[14] To the extent Greer argues that the evidence is insufficient to support his
conviction, we disagree. In reviewing a challenge to the sufficiency of the
evidence, we neither reweigh the evidence nor judge the credibility of witnesses.
Atteberry v. State, 911 N.E.2d 601, 609 (Ind. Ct. App. 2009). Instead, we
consider only the evidence supporting the conviction and the reasonable
inferences flowing therefrom. Id. If there is substantial evidence of probative
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value from which a reasonable trier of fact could have drawn the conclusion
that the defendant was guilty of the crime charged beyond a reasonable doubt,
the judgment will not be disturbed. Baumgartner v. State, 891 N.E.2d 1131, 1137
(Ind. Ct. App. 2008).
[15] Because Greer does not challenge that he was charged with child seduction by a
child care worker, we consider the evidence as it relates to this charge. To
convict Greer under subsection (m), the State was required to prove that Greer,
being at least eighteen years of age, was a child care worker for J.E., who was at
least sixteen years of age but less than eighteen years of age, and that Greer
engaged with J.E. in sexual intercourse or other sexual conduct with the intent
to arouse or satisfy the sexual desires of either himself or J.E. I.C. § 35-42-4-
7(d) defines child care worker in pertinent part as a person who
(3) is:
(A) affiliated with a:
(i) school corporation;
***
attended by a child who is the victim of a crime
under this chapter, regardless of how or whether the
person is compensated;
(B) in a position of trust in relation to a child who
attends the school; or cooperative;
(C) engaged in the provision of care or supervision
to a child who attends the school; or cooperative;
and
(D) at least four (4) years older than the child who is
the victim of a crime under this chapter.
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Greer challenges the sufficiency of the evidence only as it relates to whether he
was a child care worker for J.E. at the same time the sex act occurred, noting
that this provision is written in the present tense.
[16] Here, J.E. testified regarding the uniforms worn by school resource officers at
both the middle school and high school he attended, that he did not believe he
would suffer any consequences at school if he refused Greer’s sexual advances,
and that he and Greer discussed the sexual act afterward, but never at school.
From this evidence, the jury could have drawn a reasonable inference that
Greer was a child care worker for J.E. at the time the sex act occurred. There is
sufficient evidence to support Greer’s conviction for child seduction.
3. Admission of Evidence
[17] Greer also argues that the trial court abused its discretion in admitting evidence
that he knowingly communicated with two teenagers who are not victims in
this case over social media dating sites. Greer argues that such evidence was
irrelevant and amounted to impermissible character and prior bad act evidence
in violation of Ind. Evidence Rules 401, 402, 403, and 404. Acknowledging
that he did not preserve the alleged error for review, Greer now asserts
fundamental error to avoid waiver.
[18] As noted above, the fundamental error exception is extremely narrow and the
proponent—here, Greer—must show that the error was “so prejudicial to the
rights of the defendant as to make a fair trial impossible.” Absher, 866 N.E.2d at
355 (quoting Benson, 762 N.E.2d at 755). To meet this daunting standard,
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Greer is required to “show that the trial court should have raised the issue sua
sponte due to a blatant violation of basic and elementary principles, undeniable
harm or potential for harm, and prejudice that makes a fair trial impossible.”
Harris v. State, 76 N.E.3d 137, 139 (Ind. 2017).
[19] Greer argues that the fact he communicated with two other teenagers on social
media dating sites had no bearing on whether he had inappropriate sexual
contact with J.E. in his capacity as a child care worker. In this regard, Greer
asserts the evidence served only to show that he communicated with the other
teenagers “presumably to solicit an improper sexual relationship” with them.
Appellant’s Brief at 31.
[20] We note that there was no testimony concerning the nature of the
communications between Greer and the other teenagers and the State made no
argument that Greer solicited them for a sexual relationship. Additionally, the
fact that Greer communicated with the other teenagers is not evidence of
misconduct, of a crime, or of any other bad act.
[21] Even if it were error to admit the testimony of the communication with other
teenagers, such admission did not amount to fundamental error. Greer did not
deny that he had communicated with J.E. through social media or that he
performed oral sex on J.E. Rather, Greer argued that he did not meet the status
of perpetrator that made the consensual sex act illegal, i.e., that he was not a
child care worker over J.E. when the sex act occurred. As we determined
herein, the State presented sufficient evidence from which the jury could have
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reasonably inferred that Greer served as a child care worker at the high school
J.E. attended and at the requisite time. Greer has not established that the
admission of the testimony from the other teenagers rendered a fair trial
impossible.
Judgment affirmed.
Brown, J. and Tavitas, J., concur.
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