Mark D. Speer v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Apr 24 2017, 9:23 am
this Memorandum Decision shall not be
CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Bruce W. Graham Curtis T. Hill, Jr.
Lafayette, Indiana Attorney General of Indiana
Tyler G. Banks
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Mark D. Speer, April 24, 2017
Appellant-Defendant, Court of Appeals Case No.
79A02-1606-CR-1342
v. Appeal from the Tippecanoe
Superior Court
State of Indiana, The Honorable Steven P. Meyer,
Appellee-Plaintiff Judge
Trial Court Cause No.
79D02-1410-FA-15
Altice, Judge.
Case Summary
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[1] Following a jury trial, Mark D. Speer was convicted of attempted child
molesting as a Class A felony and child molesting as a Class C felony. Speer
was sentenced to an aggregate term of forty-two years imprisonment. Speer
presents two issues for our review:
1. Is the charging information alleging attempted child molesting
legally insufficient?
2. Is the evidence sufficient to sustain his conviction for
attempted child molesting?
[2] We affirm.
Facts & Procedural History
[3] On July 29, 2014, authorities obtained a warrant to search a residence in
Lafayette, Indiana. At the time the warrant was served, Speer and his
girlfriend, Rebecca Kaster, lived at that residence. During the search an officer
obtained Speer’s cell phone, which was then given to the Indiana State Police
where another officer extracted data from the phone. Among the data were six
videos that had been recorded on September 13, 2013.
[4] The first video was recorded in Speer’s living room and shows a naked three-
year-old girl eating an ice cream bar. Speer is heard saying: “Oh, she’s
beautiful”; “Look at that pretty little butt”; and “Oh my God, I’ve already got
her naked.” State’s Exhibit 26, VIDEO0041:20-30. At points in the first video,
the camera focuses on the girl’s vagina and buttocks. In the third video, which
was recorded in an upstairs bedroom, Speer is heard telling the naked girl that
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she is pretty before he places a blindfold over the girl’s face. The girl
immediately protests and tells Speer to take it off, which he does. In the fourth
video, Speer’s phone is propped up and the camera is focused on the girl, who
is naked and playing a guitar. Speer asks the girl if she wants to play the guitar
upside down and he then grabs her around the waist and turns her upside down
such that his face is near her vagina. Despite the girl’s protests, Speer keeps
turning her upside down as he did in the first instance until she screams to be
put down.
[5] Finally, in the sixth video, the girl remains naked and is jumping up and down
on the bed in Speer’s bedroom. Speer lays his phone down such that the girl is
still within view of the camera. He then leans over the child while she is laying
on her back on the bed completely naked. In a seemingly playful manner,
Speer covers the girl’s face with a pillow. Speer then leans over the exposed
lower half of the girl’s body, but a pillow blocks Speer’s face from the camera.
Seconds later, the girl’s muffled screams telling Speer to stop can be heard.
Speer does not move his head or say anything for approximately six seconds.
As Speer lifts his head, a sucking sound can be heard. The child again tells
Speer to get off of her belly and he responds, saying “that isn’t your belly.”1
1
While the words are not completely clear from the audio, we find this to be a substantively accurate
transcription of what Speer said. The State, during its opening statement, told the jury that Speer said, “That
isn’t your belly!” Transcript Vol. 1 at 13. In closing, the State argued that he said, “That’s not your belly!”
Transcript Vol. 2 at 143. Speer did not object to either characterization at trial, and he quotes the first of these
in his brief.
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State’s Exhibit 26, VIDEO0046:45. He then asks her if it “tickle[d]” and acts
surprised when she says it did not. Id. at VIDEO0046:59-1.01.
[6] It took weeks for the police to determine the identity of the girl in the video.
Eventually, Kaster, who initially denied that she knew the girl’s identity, told
the police that the girl was a co-worker’s daughter that she had babysat at
Speer’s home on September 13, the day the videos were created. Kaster
explained that she left the girl in Speer’s care for approximately twenty-five
minutes while she took a second child down to a creek.
[7] On October 29, 2014, the State charged Speer with Count I, attempted child
molesting as a Class A felony, Count II, child molesting as a Class C felony,
and Count III, criminal confinement as a Class C felony. An initial hearing
was held shortly after the charges were filed and an omnibus date for late
August 2014 was assigned. The initial jury trial was scheduled for late October
2015, but was continued on at least two occasions. A two-day jury trial
commenced on April 26, 2016, at the conclusion of which the jury found Speer
guilty as charged. The trial court held a sentencing hearing on May 17, 2016, at
which the court sentenced Speer to forty-two years on Count I and a concurrent
term of seven years on Count II. The trial court determined that Count III
merged with Count I, and thus did not enter judgment thereon. Speer now
appeals. Additional facts will be provided as necessary.
Discussion & Decision
1. Charging Information
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[8] Speer argues that the charging information alleging attempted child molesting is
defective because it fails to allege the statutory enhancement raising the offense
to a Class A felony. Specifically, Speer argues that the State failed to allege an
essential element of the elevated offense, i.e., that he attempted to engage in
deviate sexual conduct.
[9] The charging information for Count I, attempted child molesting as a Class A
felony, provides in pertinent part as follows:
On or about September 13, 2013, in Tippecanoe County, State of
Indiana, Mark D. Speer, did knowingly or intentionally attempt
to commit the crime of Child Molesting, by engaging in conduct
which constituted a substantial step towards the commission of
said offense, to wit: on September 13, 2013, Mark D. Speer
and/or [child] removed the clothing being worn by [child]; Speer
positioned [child]’s body in such a way that her exposed genitals
and anus were near his face; Speer appears to hold [child] down
on a bed while his head appears to be over the lower half of
[child]’s body; with Mark D. Speer, a person at least twenty-one
(21) years of age, to wit: forty-three (43) years of age; and with
[child], a child under fourteen (14) years of age, to wit: three (3)
years of age.
All of which is contrary to the statute in such cases made and
provided, to wit: Indiana Code 35-42-4-3(a)(1) [2014] and 35-41-
5-1, and against the peace and dignity of the State of Indiana.
Appellant’s Appendix Vol. II at 18.
[10] An information “shall be a plain, concise, and definite written statement of the
essential facts constituting the offense charged.” Ind. Code § 35-34-1-2(d). The
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purpose of a charging information is “‘to provide a defendant with notice of the
crime of which he is 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). The State is not
required to include detailed factual allegations; rather, a charging information
satisfies due process if the information “enables an accused, the court, and the
jury to determine the crime for which conviction is sought.” Id. at 1061
(quoting Dickenson v. State, 835 N.E.2d 542, 550 (Ind. Ct. App. 2005)).
[11] Because Speer did not file a motion to dismiss the charging information on
sufficiency grounds,2 the State argues that Speer has waived his claim. See
Wilhoite v. State, 7 N.E.3d 350, 352 (Ind. Ct. App. 2014). To avoid waiver,
Speer argues that the charging information was so lacking that it constitutes
fundamental error. Fundamental error is error so prejudicial to the rights of a
defendant that a fair trial is rendered impossible. Thomas v. State, 61 N.E.3d
1198, 1201 (Ind. Ct. App. 2016), trans. denied. To be considered fundamental
error, an error must “constitute a blatant violation of basic principles, the harm,
or potential for harm is substantial, and the resulting error must deny the
defendant fundamental due process.” Spears v. State, 811 N.E.2d 485, 488 (Ind.
Ct. App. 2004).
2
Over eighteen months elapsed between the filing of the charging information and the start of his jury trial.
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[12] Here, the State included some detailed factual allegations that it would seek to
prove to the trier of fact as being the substantial step toward commission of the
crime. In doing so, the State provided Speer with sufficient information to
apprise him of the charge he would have to defend. Additionally, the State
cited to the specific statutory provision that defined of Class A felony child
molesting.
[13] Even assuming that the charging information was erroneous, any claim of error
does not rise to the level of fundamental error. Speer cannot establish that a fair
trial was impossible based on the alleged defective information. In addition to
providing the jury with a verbatim account of the charging information for
attempted child molesting, the court also gave Final Instruction 2.01, which
defined the crime of attempted child molesting as a Class A felony, including
the requirement that the defendant “knowingly performed sexual intercourse or
deviate sexual conduct.” Appellant’s Appendix Vol. II at 105. Another final
instruction given to the jury defined the term deviate sexual conduct as used in
Final Instruction 2.01. The jury was well aware of the crime for which the
conviction was sought.
[14] Further, Speer makes no claim that he was misled by the charging information.
He also makes no claim that his defense at trial was prejudiced by the charging
information’s alleged deficiency. In fact, Speer provided a vigorous defense to
the charge at trial. Speer has not established fundamental error.
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[15] Speer’s claim that there was a material variance between the charging
information and the proof at trial likewise fails. This claim requires either a
showing that the defendant was misled and prejudiced thereby or that there is a
risk of future double jeopardy problems. See Daniels v. State, 957 N.E.2d 1025,
1030 (Ind. Ct. App. 2011). Speer has made no argument about being misled in
his defense or future double jeopardy issues.
Sufficiency
[16] Speer argues that the evidence is insufficient to support his conviction for
attempted child molesting as a Class A felony.3 Specifically, he contends that
the jury was asked to engage in pure speculation in determining whether he
took a substantial step toward engaging in deviate sexual conduct.
[17] 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 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). It is not
necessary that the evidence overcome every reasonable hypothesis of
3
Speer does not challenge his conviction for child molesting as a Class C felony.
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innocence; rather, the evidence is sufficient if an inference may reasonably be
drawn from it to support the conviction. Drane v. State, 867 N.E.2d 144, 147
(Ind. 2007). To sustain Speer’s conviction for attempted child molesting as a
Class A felony, the State was required to prove, in part, that Speer knowingly or
intentionally took a substantial step toward engaging in deviate sexual conduct
with the child. I.C. § 35-42-4-3(a)(1) (2014) (child molesting);4 Ind. Code § 35-
41-5-1 (attempt). Deviate sexual conduct is an act involving “a sex organ of
one (1) 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.” 5 Ind. Code § 35-31.5-2-94
(2014).
[18] Here, the conduct at issue is depicted in the sixth video that was extracted from
Speer’s phone. In that video Speer is recording the naked three-year-old girl
jumping around on a bed. After the girl falls to the bed and is lying exposed in
a horizontal position behind a pillow, Speer covers her face with another pillow
and then leans over the lower-half of the girl’s body, his face obscured by a
pillow. Speer’s head does not move for approximately six seconds, all the while
muffled screams from the girl for Speer to stop can be heard. As Speer stands
upright, a sucking sound can be heard. The girl again tells Speer to get off of
4
Child molesting is now a Level 1 felony if committed by a person at least 21 years old against a child less
than 14 years old and the act is “sexual intercourse or other sexual conduct.” I.C. § 35-42-4-3(a).
5
Speer committed his crimes in September 2013—before the repeal of the deviate sexual conduct definition
and replacement with the term “other sexual conduct.” “Other sexual conduct” has an identical definition as
deviate sexual conduct previously had. See Ind. Code § 35-31.5-2-221.5.
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her belly and he responds, saying “that isn’t your belly.” State’s Exhibit 26,
VIDEO0046:45. He then asks the girl if it “tickle[d]” and acts surprised when
she says it did not. Id. at VIDEO0046:59-1.01. In addition to this video, the
State presented five other videos made during the same timeframe that were
extracted from Speer’s phone. In the videos Speer recorded the naked girl,
focusing particularly on her buttocks and vaginal areas. Speer is heard making
crude comments and expressing excitement over the girl in her state of undress.
[19] The State presented sufficient evidence from which the jury could have
concluded that Speer knowingly took a substantial step toward engaging in
deviate sexual conduct with the naked three-year-old child. Speer’s conviction
for attempted child molesting as a Class A felony is affirmed.
[20] Judgment affirmed.
Riley, J. and Crone, J., concur.
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