Rian N. North v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jun 10 2020, 10:45 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 ATTORNEY FOR APPELLEE Anthony S. Churchward Josiah Swinney Deputy Public Defender Deputy Attorney General Anthony S. Churchward, P.C. Indianapolis, Indiana Fort Wayne, Indiana

IN THE COURT OF APPEALS OF INDIANA

Rian N. North, June 10, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2698 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Frances C. Gull, Appellee-Plaintiff Judge Trial Court Cause No. 02D05-1809-FA-10

Baker, Judge. Court of Appeals of Indiana | Memorandum Decision 19A-CR-2698 | June 10, 2020 Page 1 of 9 [1] Rian North appeals his convictions for three counts of Child Molesting1—two

as Class B felonies and one as a Class C felony. North makes the following

arguments: (1) his right to a speedy trial under Criminal Rule 4(B) was violated;

(2) the trial court erroneously refused to admit certain evidence; and (3) the

sentence is inappropriate in light of the nature of the offenses and his character.

We affirm.

Facts [2] In 2012, M.S. was eight years old and lived with her mother, stepfather (North),

and siblings. One day in 2012, North called M.S. up to the attic and got on top

of her. North removed her pants and underwear. M.S. watched him place an

“orange condom on his penis” before she closed her eyes. Tr. Vol. II p. 44. He

penetrated her vagina with his penis, causing M.S. to have the “terrible feeling”

of “not even being able to fight for myself” as he raped her. Id. M.S. later told

her mother what had happened, and her mother told her not to tell anyone.

North remained in the home. M.S.’s mother and North both began physically

abusing her because she had disclosed what had happened. On one occasion,

North made her pull down her underwear and “whoop[ed]” her bare buttocks

with a belt. Id. at 47. [3] In 2014, when M.S. was ten years old, North was home with M.S. while her

mother was at work. He pulled his penis out of his pants, telling her, “this is

1 Ind. Code § 35-42-4-3.

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what you get for telling your mom.” Id. at 48. He inserted his penis into her

mouth until he ejaculated. M.S. was able to later describe in detail what the

experience was like. [4] At some point in her early teenage years, M.S. began smoking marijuana and

lived in multiple shelters. She attempted suicide in 2017 and later disclosed the

molestations to a probation officer in 2018. The probation officer notified the

Department of Child Services and law enforcement. [5] On September 25, 2018, the State charged North with three counts of child

molesting. On October 10, 2018, North was appointed counsel and requested a

speedy trial. The trial court set a trial date of December 12, 2018; on December

12, the trial court entered a finding that the docket was congested and reset

North’s trial to January 24, 2019, over North’s objection. On January 3, 2019,

North filed a motion to continue through his counsel; the trial court reset the

trial to June 12, 2019. On May 20, 2019, North filed another motion to

continue through his counsel; the trial court reset the trial to September 4, 2019.

On August 26, 2019, North filed another motion to continue.2 The State

objected, and the trial court denied the motion. [6] At North’s September 4, 2019, jury trial, forensic interviewer Lorrie Freiburger

testified that M.S. had described “sensory details,” which “are details about an

2 North had been released on bond on July 9, 2019, and requested more time because he was better able to access social media and investigate his defense upon his release.

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event, in this case sexual, that somebody would have no knowledge of unless

they had occurred to them.” Id. at 130. She explained that examples of sensory

details could include the color of a condom; the taste, texture, and color of

bodily fluid; physical body positions “that a child wouldn’t know unless they

were physically in those positions”; and the placement of hands during sexual

activities. Id. During cross-examination, North’s counsel asked Freiburger

whether, “as a fourteen (14) year old you can’t say if there was any other place

she could’ve gained this knowledge?” Id. at 132. [7] The State objected, arguing outside the presence of the jury that this question

sought to elicit testimony that would violate Evidence Rule 412, which bars

evidence about a victim’s sexual history. The trial court sustained the

objection, observing that the question implied that M.S. would know these

details because of events in her life that would be inadmissible under Evidence

Rule 412. North’s counsel explained that he planned to argue that she could

have learned the sensory details of the encounters with North from “the

internet, TV, any sorts of friends[.]” Id. at 133. The trial court stated, “Well

you can certainly make that argument, but that’s not where you were going

with that.” Id. North responded, “Okay. I’m not going any further

obviously.” Id. In closing argument, North’s counsel argued that the sensory

details M.S. had described could have come from another source because a

fourteen-year-old could have watched television, accessed the internet, or

attended a sexual education course in school. Ultimately, the jury found North

guilty as charged.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2698 | June 10, 2020 Page 4 of 9 [8] On October 25, 2019, the trial court imposed an aggregate sentence of thirty-six

years—consecutive terms of fifteen years for each of the two Class B felonies

and six years for the Class C felony. North now appeals.

Discussion and Decision I. Speedy Trial [9] First, North argues that because his trial occurred outside of the seventy-day

speedy trial window, his right to a Criminal Rule 4 speedy trial was violated

and we should reverse. [10] Criminal Rule 4(B)(1) provides, in pertinent part, as follows:

If any defendant held in jail on an indictment or an affidavit shall move for an early trial, he shall be discharged if not brought to trial within seventy (70) calendar days from the date of such motion, except where a continuance within said period is had on his motion, or the delay is otherwise caused by his act, or where there was not sufficient time to try him during such seventy (70) calendar days because of the congestion of the court calendar.

See also Logan v. State, 16 N.E.3d 953, 958 (Ind. 2014) (noting that Criminal

Rule 4 challenges are separate and distinct from review of claimed violations of

constitutional speedy trial rights). [11] Failure to move for discharge prior to trial constitutes a waiver of that right to

discharge. Buza v. State, 529 N.E.2d 334, 336-37 (Ind. 1998). Indeed, waiver

results even when the defendant makes a general objection to a trial date set

beyond the seventy-day limit. Sholar v. State, 626 N.E.2d 547, 549 (Ind. Ct.

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App. 1993). Here, North did not move for discharge. Consequently, he has

waived this argument. [12] Waiver notwithstanding, North’s rights under Criminal Rule 4(B) were not

violated because all the delays were caused by congestion or North’s requests

for continuances.3 Furthermore, North was released from custody before his

trial. See Driver v. State, 725 N.E.2d 465, 470 (Ind. Ct. App. 2000) (holding that

the requirement for a speedy trial to occur within seventy days is extinguished

when a defendant is released on bond). Therefore, his speedy trial rights were

not violated and he was not entitled to be discharged.

II. Admission of Evidence [13] Next, North argues that the trial court erred by refusing to permit him to

question the forensic interviewer about other ways in which M.S. might have

acquired the knowledge of the sensory details of her encounters with North.

The admission of evidence is a matter within the trial court’s discretion. E.g.,

Pribie v. State, 46 N.E.3d 1241, 1246 (Ind. Ct. App. 2015). We will reverse only

where the trial court’s decision is clearly against the logic and effect of the facts

and circumstances before it. Id.

3 North argues that he did not personally request the continuances. But acts of counsel are viewed as acts of the defendant for Criminal Rule 4 purposes. Underwood v. State, 722 N.E.2d 828, 832 (Ind. 2000). In any case, because North was released from custody before trial, his protections under Criminal Rule 4(B) were extinguished.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2698 | June 10, 2020 Page 6 of 9 [14] Evidence Rule 412(a) provides that “evidence offered to prove that a victim . . .

engaged in other sexual behavior” is inadmissible in a criminal proceeding

involving alleged sexual misconduct.4 Here, the trial court sustained the State’s

objection to the following question North’s counsel asked of the forensic

interviewer: “But as a fourteen (14) year old you can’t say if there was any other

place she could’ve gained this knowledge [of sensory details]?” Tr. Vol. II p.

132-33. To the extent that this question would have elicited testimony

regarding M.S.’s sexual history, the trial court did not err by refusing to permit

it, as it is squarely covered by Evidence Rule 412(a). [15] To the extent that North argues that he intended to elicit testimony that M.S.

may have known about the sensory details through television, the internet, or

social media, the trial court did not prohibit this argument or even prevent

counsel from asking questions along these lines. Id. at 133. And in fact, North

made this precise argument as part of his closing. Consequently, he can show

no prejudice as a result of the trial court’s ruling. [16] In sum, the trial court did not err by sustaining the State’s objection to the

question, North’s counsel did not inquire further of the witness along

permissible lines, and in any event, counsel was able to make the argument he

planned to make as part of closing. Therefore, North is not entitled to reversal

on this basis.

4 There are certain exceptions to this rule that are not applicable in this case. Evid. R. 412(b)(1).

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III. Appropriateness [17] Finally, North argues that the sentence imposed by the trial court is

inappropriate in light of the nature of the offenses and his character pursuant to

Indiana Appellate Rule 7(B). We must “conduct [this] review with substantial

deference and give ‘due consideration’ to the trial court’s decision—since the

‘principal role of [our] review is to attempt to leaven the outliers,’ and not to

achieve a perceived ‘correct’ sentence.” Knapp v. State, 9 N.E.3d 1274, 1292

(Ind. 2014) (quoting Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013))

(internal citations omitted). [18] North was convicted of two Class B felonies and one Class C felony. For each

Class B felony, he faced a term of six to twenty years, with an advisory term of

ten years. Ind. Code § 35-50-2-5(a). For each Class B felony conviction, the

trial court imposed a sentence of fifteen years—above the advisory but less than

the maximum. For the Class C felony, he faced a term of two to eight years,

with an advisory term of four years. I.C. § 35-50-2-6(a). The trial court

imposed a term of six years—above the advisory but less than the maximum.

Had the trial court imposed consecutive maximum terms, North would have

received an aggregate forty-eight-year term. Instead, the trial court imposed

consecutive terms of fifteen, fifteen, and six years, totaling thirty-six years

imprisonment. [19] With respect to the nature of the offenses, North repeatedly molested his young

stepdaughter, thereby abusing his position of trust and authority. He also

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retaliated against her for telling her mother what had happened, whipping her

with a belt and forcing her to fellate him as punishment. These acts, causing

her to live in fear for years, went above and beyond the elements of the offenses. [20] As to his character, while he had no criminal history prior to molesting M.S.,

he was convicted of Level 6 felony domestic battery after he molested her. 5

Additionally, his probation was revoked in that case. We also find that his acts

of retaliation against M.S. further evidence his poor character. [21] It may well be that this case is not the worst of the worst. But the trial court did

not impose consecutive maximum terms. Instead, the trial court appropriately

acknowledged the heinousness of these crimes, including their severe and long-

lasting effects on M.S., and North’s character by imposing sentences that

exceeded the advisory terms but fell short of the maximum. Therefore, we find

that the aggregate thirty-six-year sentence is not inappropriate in light of the

nature of the offenses and North’s character. [22] The judgment of the trial court is affirmed.

Bradford, C.J., and Pyle, J., concur.

5 We note, however, that North was only around twenty years old when he began molesting M.S., meaning that he was not long into adulthood when he began committing some of the most serious offenses there are and that he had not yet had many years to amass a criminal record.

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