Robert E. Quinn v. State of Indiana , 2015 Ind. App. LEXIS 670 ( 2015 )

Oct 08 2015, 8:32 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Marielena Duerring Gregory F. Zoeller
South Bend, Indiana Attorney General of Indiana
Angela N. Sanchez
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Robert E. Quinn, October 8, 2015
Appellant-Defendant, Court of Appeals Case No.
20A03-1503-CR-82
v. Appeal from the Elkhart Superior
Court.
The Honorable George W.
State of Indiana, Biddlecome, Judge.
Appellee-Plaintiff. Cause No. 20D03-1303-FA-14
Barteau, Senior Judge
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Statement of the Case
1
[1] Robert E. Quinn appeals his convictions of child molesting, a Class B felony,
2
and criminal confinement, a Class B felony. We affirm.
Issue
[2] Quinn has preserved one issue for appellate review: whether the charges of
child molesting and criminal confinement are barred by the statute of
limitations.
Facts and Procedural History
[3] On the night of March 5, 1988, ten-year-old E.F. was asleep on a couch in the
living room of her family’s house in Elkhart County. E.F.’s parents were not at
home, and E.F.’s brother was asleep in another room. Suddenly, Quinn forced
open the front door, damaging the door frame, and entered the house. As E.F.
awoke, he covered her head with a coat, picked her up, and carried her outside.
Quinn got into his car with E.F. and drove away, holding her in a headlock.
[4] Later, Quinn stopped the car. E.F. could not see where she was or the face of
her kidnapper because the coat was covering her face. Quinn put her on her
back on the driver’s side of the front seat. E.F. cried and tried to remove the
coat. Quinn punched her in the face, told her to quit crying, and threatened to
1
Ind. Code § 35-42-4-3 (1981).
2
Ind. Code § 35-42-3-3 (1985).
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kill her and her family “with a knife” if she kept crying or told anyone about the
abduction. Tr. p. 298.
[5] Quinn pushed E.F.’s nightgown up to her shoulders and rubbed her chest. He
removed her underpants and unsuccessfully attempted to insert his penis in her
vagina, inflicting intense pain on E.F. Next, E.F. felt Quinn smearing a
substance on and inside of her vagina with his fingers. It burned. She asked
him what the substance was, and Quinn said it was Vaseline.
[6] After applying the Vaseline, Quinn inserted his penis into E.F.’s vagina. The
pain caused E.F. to pass out for a short time. At one point she gripped the
steering wheel and tried to pull away, but Quinn held her in place. Quinn
inserted his penis in her vagina a second time, and she passed out again.
Eventually, Quinn moved E.F. back to the passenger side of the front seat and
told her to keep the coat on her head. He started the car and began driving.
E.F. found her underwear and put it back on.
[7] Quinn stopped at a video rental store next to E.F.’s house and told her to get
out. She got out as fast as she could and went inside her house. E.F. saw blood
in her underwear and used toilet paper and a washcloth to try to clean up. She
was still in pain. After E.F. cleaned up as best she could, she hid the washcloth
behind the toilet. Next, she sat on her bed. E.F. remembered Quinn’s threat to
kill her family if she told anyone. She did not wake her brother.
[8] When E.F.’s parents returned home at two or three in the morning, they saw
that the front door had been broken open. E.F.’s mother found E.F. sitting in
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bed. E.F., who was afraid that her mother would be angry, told her mother
that she had started her period. E.F.’s mother continued questioning her and
told E.F.’s father to call the police.
[9] Detective Gary Kenawell of the Elkhart County Sheriff’s Department was
dispatched to E.F.’s house. By the time he arrived, E.F. had already been taken
to the hospital. Several other officers were present at the house and had
collected E.F.’s nightgown and underwear, as well as the toilet paper and the
washcloth she had used to clean up. The officers stored the items in bags, to
which they affixed evidence tags that stated a case number, the date, the
collecting officers’ names, the house address, and a description of the contents.
[10] At the hospital, a doctor examined E.F.’s injuries and performed a sexual
assault examination. Police officers collected the sexual assault evidence kit,
which was marked as State’s Exhibit 8 at trial. Doctors later performed surgery
on E.F. to repair severe vaginal lacerations caused by Quinn’s attack.
[11] Detective Kenawell went to the hospital, where he questioned E.F.’s father and
brother. At his request, they went to the sheriff’s department, where they gave
formal statements. He later questioned E.F. while she was still hospitalized,
but she was unable to describe her attacker. At that time, Quinn was a stranger
to E.F.’s family, but it was discovered years later that he and E.F.’s family had
lived in the same neighborhood.
[12] Detective Kenawell and other officers canvassed houses and businesses near
E.F.’s house to find out if anyone had seen anything, but their questioning did
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not yield any results. Another officer told Detective Kenawell to consider
Quinn as a suspect. The record does not disclose the reasons for the officer’s
suspicion, but Detective Kenawell’s investigation did not tie Quinn or any other
person to E.F.’s kidnapping and rape.
[13] E.F. and her family members regularly spoke with the police for several
months, but the investigation was hampered by a lack of leads. In July 1988,
the sheriff’s department put the case in inactive status, meaning that no further
investigation would be undertaken absent new information. In October 1988,
E.F.’s father called the police with information about a possible suspect, but the
lead did not pan out. E.F.’s father periodically called the police over the next
several years, requesting status updates.
[14] Meanwhile, an officer had delivered the sexual assault evidence kit, two pairs of
E.F.’s underpants, her nightgown, the washcloth, and the toilet tissue to the
Indiana State Police Laboratory (the Lab) on March 10, 1988. At that time, the
Lab used “ABO typing” to test blood samples. Id. at 161. It was an accurate
but rudimentary analysis that could only exclude a suspect from a blood sample
rather than identifying the suspect as the definitive source. Blood testing
revealed that the underpants, washcloth, and nightgown contained blood that
was consistent with E.F.’s blood standard, but no further information could be
obtained. Several pieces of evidence had seminal fluid or spermatozoa on
them, but at that time the Lab had no testing procedures that could link those
substances with a specific person.
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[15] In 1988, the Lab’s policy was to take clippings known as sub-items from pieces
of evidence and test the sub-items rather than the entirety of each item. The
Lab returned each item, minus the portion that was removed to create the sub-
item, to the appropriate law enforcement agency. The Lab still makes use of
sub-items today. Currently, the Lab has a practice of keeping sub-items “in
perpetuity.” Id. at 180. In the 1980s, the Lab had no formal retention policy,
but an analyst could retain and store a sub-item if he or she wanted.
[16] Prior to 2000, the Elkhart County Sheriff’s Department destroyed the evidence
in its possession that was related to this case. Kim Epperson, the Lab analyst
who performed the blood testing in 1988, chose to store the sub-items. They
remained in storage at the Lab’s Indianapolis vault over several decades.
[17] In the early to mid-1990s, the Lab began to use DNA analysis. Over the years,
the Lab adopted more advanced DNA analytical methods as they became
available. The newer methods are better able to tie specific individuals’ DNA
profiles to DNA profiles of unknown individuals found on pieces of evidence.
In 1998 or 1999, the Combined DNA Index System, or CODIS, was put into
service. CODIS is a nationwide DNA database and has sub-databases for each
state. DNA profiles are stored in CODIS, and law enforcement agencies can
compare DNA profiles generated from pieces of evidence against the DNA
profiles in CODIS to find a match. Indiana began submitting DNA profiles to
CODIS in 2000.
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[18] The Elkhart County Sheriff’s Department does not have a policy for reopening
inactive cases. On occasion, detectives ask forensic specialists to look at older
cases to see if there is any evidence that can be submitted for DNA testing, but
there is no formal system or schedule. Similarly, the Lab does not have a
formal procedure for testing older sub-items from the vault. Due to the sheer
volume of evidence, the Lab acts only in response to requests from law
enforcement agencies. It can take at least a week for an analyst to create a
DNA profile from one sample, and there are “thousands and thousands of old
case samples” in the Lab’s vaults. Id. at 229.
[19] In September 2011, E.F. contacted Elkhart County officials about her case,
looking for medical information. She was put in touch with Kenawell, who
had retired from the sheriff’s department and was an investigator for the
prosecutor’s office. Kenawell remembered E.F. and agreed to look into her
case.
[20] Kenawell contacted an acquaintance at the Lab to see if the Lab still had any of
the evidence from E.F.’s case. Lab personnel checked the vault and found the
sub-items that Epperson had retained and placed in storage over two decades
ago. In June 2012, Forensic Scientist Maranda Michael tested the sub-items
and generated a DNA profile of an unknown male based on sperm fractions
found on a sub-item that was part of the washcloth. Another Lab employee
uploaded the DNA profile to CODIS and found a match with Quinn, whose
DNA profile was already on CODIS.
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[21] In November 2012, the police sought and obtained a search warrant for a
buccal swab from Quinn. The swab was submitted to the lab for testing in
January 2013. In February 2013, Forensic Scientist Michael compared the
profile generated from the buccal swab to the profile generated from the sub-
items and determined that Quinn was the source of the sperm fractions found
on sub-items that had been parts of the washcloth, the nightgown, and one pair
of underpants.
[22] On March 5, 2013, the State charged Quinn with child molesting, criminal
confinement, and rape, a Class A felony. Quinn pleaded guilty to rape but
moved to dismiss the remaining two charges, contending that they were barred
by the statute of limitations. The trial court denied Quinn’s motion and held a
bench trial on those two charges. The court determined that Quinn was guilty
and sentenced him accordingly. This appeal followed.
Discussion and Decision
[23] Quinn presents constitutional and statutory challenges to his convictions of
child molesting and rape, but only the statutory claim has been preserved for
appellate review.
[24] At the time that the State charged Quinn, Indiana Code section 35-41-4-2
(2009) provided, in relevant part:
(a) Except as otherwise provided in this section, a prosecution for
an offense is barred unless it is commenced:
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(1) within five (5) years after the commission of the offense, in
the case of a Class B, Class C, or Class D felony; or
(2) within two (2) years after the commission of the offense, in
the case of a misdemeanor.
(b) A prosecution for a Class B or Class C felony that would
otherwise be barred under this section may be commenced within
one (1) year after the earlier of the date on which the state:
(1) first discovers evidence sufficient to charge the offender with
the offense through DNA (deoxyribonucleic acid) analysis; or
(2) could have discovered evidence sufficient to charge the
offender with the offense through DNA (deoxyribonucleic acid)
analysis by the exercise of due diligence.
(c) A prosecution for a Class A felony may be commenced at any
time.
[25] Quinn argues that Indiana Code section 35-41-4-2(b)’s DNA extension to the
statute of limitations violates federal and state constitutional prohibitions of ex
post facto laws. Quinn did not present his ex post facto constitutional claims to
the trial court. Instead, when Quinn moved to dismiss the charges of child
molesting and criminal confinement, he alleged only that the State violated the
statute of limitations. He did not present ex post facto claims at the evidentiary
hearing on the motion to dismiss. Thus, he has procedurally defaulted his ex
post facto claims for appellate review. See Saunders v. State, 848 N.E.2d 1117,
1122 (Ind. Ct. App. 2006) (constitutional claim waived for appellate review;
defendant had presented a different claim to the trial court), trans. denied.
[26] Waiver notwithstanding, the DNA extension to the statute of limitations does
not impose a punishment for an act that was not punishable at the time, nor
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does it impose an additional punishment to that which was then prescribed.
The DNA extension does not violate federal or state constitutional prohibitions
of ex post facto laws. See Minton v. State, 802 N.E.2d 929, 934 (Ind. Ct. App.
2004) (statute extending the limitations period for the crime of child molesting
was not an unconstitutional ex post facto law), trans. denied.
[27] Next, Quinn argues that the State failed to act with due diligence in discovering
the DNA evidence that led the State to charge him with child molesting and
criminal confinement. He concludes that the State failed to comply with
Indiana Code section 35-41-4-2(b), and those charges should be dismissed.
[28] Our standard of review for the interpretation of statutes is de novo. Wright v.
State, 772 N.E.2d 449, 454 (Ind. Ct. App. 2002). We review legal
determinations to ascertain whether the trial court erred in application of the
law. Id. Exceptions to statutes of limitations must be construed narrowly and
in a light most favorable to the accused. Sloan v. State, 947 N.E.2d 917, 922
(Ind. 2011). When a statute is clear and unambiguous, we need not apply any
rules of construction other than giving effect to the plain and ordinary meaning
of the language. Id.
[29] We have not found any cases that define the circumstances under which the
State may or may not be said to have acted with due diligence for purposes of
Indiana Code section 35-41-4-2(b), and the parties have not directed us to any
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3
cases on point. The State analogizes this statutory requirement of due
diligence to the use of that term in the context of newly-discovered evidence
submitted by petitioners in post-conviction relief proceedings. That context is
not comparable to this case, where the State bears the burden of proof beyond a
reasonable doubt and exceptions to statutes of limitations must be construed
narrowly.
[30] Due diligence is defined as: “The diligence reasonably expected from, and
ordinarily exercised by, a person who seeks to satisfy a legal requirement or to
discharge an obligation.” Black’s Law Dictionary 553 (Tenth Ed. 2014).
[31] Quinn notes that the State has had the sub-items since 1988, and the State took
his DNA through buccal swabs in 2001 and 2003 in relation to other criminal
cases. He contends that there is no reason why the State could not have created
a DNA profile from the sub-items and uploaded it to CODIS years ago, thereby
discovering Quinn’s identity much sooner. He concludes that the State’s delay
was unreasonable.
3
Quinn cites Marshall v. State, 832 N.E.2d 615 (Ind. Ct. App. 2005), trans. denied. That case is distinguishable
because it did not address due diligence. Instead, a panel of the Court determined that Indiana Code section
35-41-4-2(b) did not apply because the State had discovered the defendant’s identity using non-DNA
evidence over a year before receiving the results of DNA testing.
A federal case from Indiana, United States v. Hagler, 700 F.3d 1091 (7th Cir. 2012), addressed the
circumstances under which DNA evidence can toll the statute of limitations. However, that case addressed a
federal statute that does not impose upon the prosecution a requirement of due diligence in locating and
analyzing DNA evidence.
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[32] The key inquiry for due diligence is whether the State’s efforts to identify Quinn
through DNA testing were reasonable under the circumstances. Here, although
the State possessed sub-items containing Quinn’s DNA in 1988, the sub-items’
continued existence was a matter of happenstance because the State’s Lab had
no policy requiring retention of the sub-items when they were created.
Retention of sub-items was left to the discretion of individual analysts, and
many chose not to keep sub-items. Tr. p. 184 (“In the early days, before DNA
analysis, they didn’t even think that they needed to retain sub-items.”). The
Elkhart County Sheriff’s Office had destroyed the evidence in its possession
prior to 2000.
[33] The evidence also demonstrates that the Lab does not have the resources to
proactively examine every sub-item in its vault to see if a DNA profile can be
created. There are thousands of sub-items in the Lab’s vault, and given staffing
realities, Lab personnel act in response to requests from law enforcement
agencies.
[34] In addition, the Elkhart County Sheriff’s Department does not have the
resources to leave every case open and routinely investigate them all. Instead,
the Department places cases on inactive status once all avenues of investigation
have been exhausted, subject to reactivating them when new information comes
in. Although the Department’s employees occasionally look at inactive cases,
there is no formal policy or set schedule for such reexaminations.
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[35] When E.F. called Elkhart County officials for information about her case, she
was by chance connected with Kenawell, one of the original detectives in the
case, who had since retired and was working for a different agency. Kenawell
happened to have a contact at the Lab who was able to begin the search for the
sub-items. If E.F. had contacted county officials five or ten years earlier, the
same connections may have been made and may have led to the same
investigative outcome, but perhaps not. The possibility that different policies or
investigation techniques could have led to Quinn’s identification years earlier
does not compel a conclusion that the State acted unreasonably here.
[36] Quinn does not dispute that, once Kenawell and the Lab’s employees
determined that the sub-items still existed, they acted diligently in performing
the testing and further investigation necessary to connect the DNA on the sub-
items with Quinn.
[37] Under the facts and circumstances of this case, the State’s employees acted
reasonably in the manner in which they maintained, discovered, and tested the
DNA evidence that led to Quinn’s convictions, thereby establishing the due
diligence requirement of Indiana Code section 35-41-4-2(b). Quinn’s request to
vacate his child molesting and confinement convictions must fail.
Conclusion
[38] For the foregoing reasons, we affirm the judgment of the trial court.
[39] Affirmed.
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Barnes, J., and Bradford, J., concur.
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