LAW.coLAW.co

Derrick Finch, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2024)

Court of Appeals of Indiana.2024-05-15No. Court of Appeals Case No. 23A-CR-1394

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

MEMORANDUM DECISION

Kenworthy, Judge.

[1] Derrick Finch appeals his convictions for three counts of Level 1 felony child molesting.

1

He contends the trial court abused its discretion in admitting (1) evidence of a weapon not used in the commission of the crime, and (2) the testimony of a sexual assault nurse examiner. He also argues his ninety-year aggregate sentence is inappropriate. We affirm.

Facts and Procedural History

[2] Finch met A.V. when she was five or six years old. Finch and A.V.’s stepfather worked construction jobs together, and Finch spent time with A.V.’s family. Finch “was like an uncle” to A.V. Tr. Vol. 1 at 64.

[3] In early 2018, Finch was living with his mother in a two-bedroom house in Elwood, Indiana. In January or February, Finch invited A.V. and her parents to move in. A.V. was eleven years old, and Finch turned thirty-three years old that February. Often A.V. and her parents slept on the bed in Finchs room, while Finch slept on the living room couch. But “[n]obody was assigned a spot to sleep.” Id. at 191. A.V.’s parents worked long and sporadic hours on a remodeling job. They also regularly used illicit drugs.

[4] Finch began acting “flirty” with A.V. and would touch her, slap her buttocks, and tell her he loved her. Id. at 104. One night in February when A.V.’s parents were gone, A.V. was lying on the bed in Finchs room next to Finch. Finch reached under her clothing, put his fingers inside her labia, and rubbed the area around her clitoris. Finch told A.V. he loved her and to not tell anyone because “hed get in trouble and go away for a very long time.” Id. Over the next four months, Finch performed the same act “[e]very single night where there was opportunity.” Id. at 111. The last time it happened was in the living room while A.V.’s parents were asleep in Finchs bedroom. Two or three times, Finch had A.V. put her mouth on his penis until he ejaculated in her mouth. According to A.V., “[H]e said he ․ loved me and I loved him, so I felt like it was normal.” Id. at 115. A.V. believed she was in “a boyfriend and girlfriend type situation” with Finch. Id. at 107. A.V. said Finch “bought me stuff and just took like care of me.” Id. at 121.

[5] A.V. went to live with her biological father in June 2018. At first, she told no one about Finchs actions, in part because she did not realize they were wrong until she was no longer around Finch. In early 2020, A.V. told her stepfather Finch had done something bad to her but did not disclose details. Later that year, she told her boyfriend she was sexually assaulted when she was eleven years old. In 2021, A.V. told both her sister and mother Finch harmed her. During this time, A.V. suffered from panic attacks and anxiety, exhibited self-harming behaviors, and talked about and attempted suicide. In 2022, she disclosed the molestation to a therapist, which prompted a police investigation and a forensic interview at a child advocacy center.

[6] The State charged Finch with three counts of Level 1 felony child molesting. The case proceeded to a jury trial. On the morning of day two, outside the presence of the jury, the trial court held a hearing to determine the admissibility of certain testimony from A.V. The State asked A.V. why she told no one right away about the molestation. A.V. responded, “Because I was scared.” Id. at 54. When asked why, she stated, “Because he always had a gun next to the bed.” Id. On cross-examination, A.V. testified Finch had not threatened her with the gun but its presence scared her. Finch moved to exclude evidence of the gun at trial. The trial court found A.V.’s testimony about the gun relevant but not prejudicial because she did not describe “wrongful conduct” nor allege “he was possessing the gun illegally or did anything illegal with it or acting in any threatening [way] even.” Id. at 58. The trial court declared it would “characterize [the objection] as a defense motion [in] limine” and denied the motion. Id. at 59. At trial, A.V. testified “I was scared of him” because “he always had like a gun next to the bed.” Id. at 122. Defense counsel did not object.

[7] On day three, the trial court held another hearing outside the presence of the jury in anticipation of testimony from sexual assault nurse examiner Holly Renz. The State planned to call Renz to testify about delayed disclosures of child sexual abuse, among other things. Defense counsel objected, arguing he had not attacked A.V.’s credibility due to the timing of her disclosure, so the testimony would only bolster A.V.’s credibility. The State responded Renz was being called as a “skilled witness” to educate the jury on topics “not commonly understood” by persons unfamiliar with child sexual abuse. Tr. Vol. 2 at 34. The trial court ruled Renzs testimony about delayed disclosures was admissible, stating, “the fact there is delayed disclosure is certainly before the jury and without some explanation, um, it may be difficult for the jurors to understand the reasons that go into that, thats why I believe its relevant here even though the defense [has] not particularly challenged it.” Id. at 39–40.

[8] Trial resumed, and the State called Renz. Before her testimony began, defense counsel renewed his objection. After describing her qualifications and experience, Renz testified delayed disclosure “is something we see, um, more times than not with children” rather than adults or adolescent victims. Id. at 52. She described the reasons why children do not immediately disclose abuse, including being told not to tell, being unable to leave the home where the abuse is occurring, believing abuse is normal, and not wanting something bad to happen to their abuser if it is someone they otherwise love and trust. She also testified the disclosure process varies between children: some never tell, some tell quickly, and sometimes children “tentatively tell” over time, in which case “they may drop hints, they dip their toe in the water, to see how somebodys going to react” and then move through a disclosure process. Id. at 54–55.

[9] The jury found Finch guilty on all three counts. At sentencing, the trial court found “substantial aggravation” due to Finchs “significant history of prior criminal behavior,” past violations of conditions of court supervision, and Finchs position of trust with respect to A.V. Id. at 150. The trial court found no mitigators. The trial court imposed the advisory sentence of thirty years on each count and ordered them served consecutively for an aggregate sentence of ninety years in the Indiana Department of Correction.

1. Admission of Evidence

[10] Finch argues the trial court abused its discretion in admitting (1) A.V.’s testimony about Finchs gun, and (2) Renzs testimony about delayed disclosures. A trial court has broad discretion in determining the admissibility of evidence. Hoglund v. State, 962 N.E.2d 1230, 1237 (Ind. 2012). We will disturb a trial courts ruling on the admissibility of evidence only when the court abused its discretion. Id. “An abuse of discretion occurs when the trial courts decision is clearly against the logic and effect of the facts and circumstances before it.” Id.

A. Finch waived his claim the trial court abused its discretion by admitting evidence of Finchs gun.

[11] Finch argues the trial court abused its discretion by allowing A.V. to testify Finch had a gun next to the bed. Finch points to several cases holding evidence of a weapon not used in the commission of an offense should be excluded as irrelevant and highly prejudicial.

[12] Defense counsel objected to the gun evidence at a hearing held outside the jurys presence on the morning of trial day two. The trial court overruled Finchs objection and characterized it as a defense motion in limine. When the trial resumed, the State asked A.V. why she told no one about Finchs actions immediately. A.V. said, “I was scared of him” because “he always had like a gun next to the bed.” Tr. Vol. 1 at 122. Defense counsel did not object.

[13] Motions in limine do not preserve errors for appeal. White v. State, 687 N.E.2d 178, 179 (Ind. 1997). A defendant must reassert an objection at trial contemporaneously with the introduction of the evidence. Id. “This allows the trial court an opportunity to make a final ruling on the matter in the context in which the evidence is introduced.” Id. By failing to renew his objection and arguments at trial, Finch waived his claim of error.

[14] Yet Finch argues the evidence rules changed in 2013 “to allow an objection to stand without formally lodging a continuing objection.” Appellants Br. at 12 (citing Ind. Evidence Rule 103(b)). The amended rule provides: “Once the court rules definitively on the record at trial a party need not renew an objection or offer of proof to preserve a claim of error for appeal.” Evid. R. 103(b) (emphasis added). Our Supreme Courts amendment to Evidence Rule 103(b) “merely recognized the use of a continuing objection at trial.” Hostetler v. State, 184 N.E.3d 1240, 1246 (Ind. Ct. App. 2022), trans. denied. Continuing objections “avoid the futility and waste of time inherent in requiring repetition of the same unsuccessful objection each time a party offers evidence of a given character.” Hutcherson v. State, 966 N.E.2d 766, 770 (Ind. Ct. App. 2012), trans. denied. Objecting counsel must ensure a continuing objection “fully and clearly advises the trial court of the specific grounds for objection.” Id. “If the trial court does not specifically grant the right to a continuing objection, it is counsels duty to object to the evidence as it is offered in order to preserve the issue for appeal.” Id. (quotation marks and citation omitted).

[15] Finch did not request a continuing objection during the hearing, and the trial court did not state the evidence would be offered at trial over Finchs objection. At trial, Finch did not raise a standalone or continuing objection when the State introduced the evidence. The trial court therefore had no opportunity to make a final ruling on admissibility in the context in which the evidence was presented. Finch has waived appellate review of this claim.

B. The trial court did not abuse its discretion in admitting Renzs testimony about delayed disclosure of child sexual abuse.

[16] Finch next argues the trial court abused its discretion in admitting Renzs description of delayed disclosures because it was impermissible vouching testimony. Evidence Rule 704(b) provides: “Witnesses may not testify to opinions concerning intent, guilt, or innocence in a criminal case; the truth or falsity of allegations; whether a witness has testified truthfully; or legal conclusions.” Evid. R. 704(b). Direct and indirect vouching testimony is not admissible in cases involving allegations of child sexual abuse despite the unique evidentiary challenges they often present. See Hoglund, 962 N.E.2d at 1237.

[17] Over Finchs objection, the trial court admitted Renzs testimony to educate the jury about delayed disclosures of child sexual abuse. The trial court found “the fact there is delayed disclosure is certainly before the jury and without some explanation, um, it may be difficult for the jurors to understand the reasons that go into that[.]” Tr. Vol. 2 at 39. Renz testified delayed disclosure is more common in child victims of sexual abuse than adults or adolescents. She also stated disclosure timing varies—ranging from never telling to immediately reporting—and some children may engage in a tentative disclosure process. When asked, “[D]oes the process for disclosure in children happen the same way with every child?” she responded, “Oh no.” Id. at 54.

[18] Finch argues Renzs testimony “amounted to saying that there was no normal way and when children report claimed abuse,” so “however and whenever a child reports abuse, the jury should believe her no matter[ ] how incredible it would otherwise find her claims.” Appellants Br. at 20. We agree with Finchs summary of Renzs testimony but not his conclusion. Renz testified the timing of a childs disclosure of sexual abuse depends on myriad factors and varies widely. She did not testify that a child who waits to allege abuse is more likely to have been abused and is therefore more credible. General testimony about delayed disclosures is not improper vouching. See Baumholser v. State, 62 N.E.3d 411, 416 (Ind. Ct. App. 2016) (holding a forensic interviewers testimony that “most of the time [disclosure of child sexual abuse] is delayed in some way” did not relate to the truth or falsity of the victims allegations and was not improper vouching under Rule 704(b)), trans. denied.

[19] Renz also testified she never interviewed A.V. and did not know the facts of this case. “Rule 704(b) is not violated by testimony that does not offer an opinion about whether any particular statement by a witness is true or not.” Ward v. State, 203 N.E.3d 524, 532 (Ind. Ct. App. 2023). Because Renz did not directly or indirectly offer an opinion about the truth or falsity of the allegations or the truthfulness of A.V.’s statements, Renzs testimony did not violate Rule 704(b). The trial court did not abuse its discretion in admitting Renzs testimony.

2. Finchs sentence is not inappropriate.

[20] Finch next asks us to revise his sentence. The Indiana Constitution authorizes this Court to review and revise a trial courts sentencing decision as provided by rule. Ind. Const. art. 7, § 6. Indiana Appellate Rule 7(B) provides we may revise a sentence authorized by statute if, “after due consideration of the trial courts decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” The principal role of appellate review is to leaven the outliers, not to achieve a perceived correct sentence in each case. Conley v. State, 183 N.E.3d 276, 288 (Ind. 2022). Therefore, “we reserve our 7(B) authority for exceptional cases.” Faith v. State, 131 N.E.3d 158, 160 (Ind. 2019) (per curiam).

[21] “[S]entencing is principally a discretionary function in which the trial courts judgment should receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). “Such deference should prevail unless overcome by compelling evidence portraying in a positive light the nature of the offense (such as accompanied by restraint, regard, and lack of brutality) and the defendants character (such as substantial virtuous traits or persistent examples of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). The question “is not whether another sentence is more appropriate; rather, the question is whether the sentence imposed is inappropriate.” Helsley v. State, 43 N.E.3d 225, 228 (Ind. 2015) (quoting King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008)) (emphasis omitted). Whether we regard a sentence as inappropriate “turns on our sense of the culpability of the defendant, the severity of the crime, the damage done to others, and myriad other factors that come to light in a given case.” Cardwell, 895 N.E.2d at 1224. The defendant bears the burden of persuading us a revised sentence is warranted. See Hall v. State, 177 N.E.3d 1183, 1197 (Ind. 2021).

[22] The sentencing range for a Level 1 felony child molesting offense is twenty to fifty years, with an advisory sentence of thirty years. I.C. § 35-50-2-4(c) (2014). The trial court sentenced Finch to the advisory sentence of thirty years on each count and ordered the sentences served consecutively.

[23] Because our legislature has selected the advisory sentence as the “starting point” for “an appropriate sentence for the crime committed,” the defendant bears a “particularly heavy burden” when the trial court imposes the advisory sentence. Fernbach v. State, 954 N.E.2d 1080, 1089 (Ind. Ct. App. 2011), trans. denied. As to the nature of the offense, Finch repeatedly molested A.V. for four months. A.V. testified Finch engaged in this conduct “[e]very single night where there was opportunity.” Tr. Vol. 1 at 111. He bought her gifts and convinced her they were in an adult “boyfriend and girlfriend type situation” when she was eleven years old. Id. at 107. As a result, A.V. suffered from panic attacks and anxiety, engaged in self-harming behaviors, and talked about and attempted suicide. The nature of Finchs offenses weighs against revision.

[24] As to Finchs character, he has an extensive criminal history, including three felony and six misdemeanor convictions as an adult. He self-reported several juvenile arrests and two delinquency adjudications. He violated probation and community corrections terms multiple times. He was serving a suspended sentence when he committed these offenses. And Finch abused his position of trust with A.V., who described him as “like an uncle” to her. Id. at 64. Finch points to no evidence speaking highly of his character, and we find none in the record. Finch has not met the “particularly heavy burden” of showing an advisory sentence on each count was inappropriate. Fernbach, 954 N.E.2d at 1089.

[25] Still, Finch argues an aggregate sentence of ninety years is inappropriate because it amounts to a de facto life sentence. He also contends at least two of the three charges must have been based on the same conduct, and imposing consecutive sentences for the same acts with the same child is inappropriate.

[26] Finchs argument is unpersuasive. The trial court ordered Finchs sentences served consecutively due to the aggravating factors of Finchs criminal history, past violations of court supervision conditions, and abuse of his position of trust as to A.V. A trial court may consider sentencing aggravators and mitigators when determining whether terms of imprisonment shall be served concurrently or consecutively. I.C. § 35-50-1-2(c) (2016). “[E]ven a single aggravating circumstance may support the imposition of consecutive sentences.” Mathews v. State, 849 N.E.2d 578, 589 (Ind. 2006). Considering the aggravating circumstances here, it was within the trial courts discretion to order Finchs sentences served consecutively.

[27] Moreover, “appellate review should focus on the forest—the aggregate sentence—rather than the trees—consecutive or concurrent, number of counts, or length of the sentence on any individual count.” Cardwell, 895 N.E.2d at 1225. Finchs aggregate ninety-year sentence for repeatedly molesting eleven-year-old A.V. over four months was not inappropriate. See Pierce v. State, 949 N.E.2d 349, 352–53 (Ind. 2011) (exercising independent appellate sentencing review to impose an aggregate eighty-year sentence on a defendant who repeatedly molested a child over whom he held a position of trust); Stetler v. State, 972 N.E.2d 404, 408–09 (Ind. Ct. App. 2012) (holding defendants aggregate ninety-year sentence—two consecutive thirty-year terms and a thirty-year habitual offender enhancement—for two counts of child molesting not inappropriate), trans. denied.

Conclusion

[28] The trial court did not abuse its discretion in admitting certain evidence. Finchs sentence is not inappropriate.

[29] Affirmed.

FOOTNOTES

1

.   Ind. Code § 35-42-4-3(a)(1) (2015).

Memorandum Decision by Judge Kenworthy

Chief Judge Altice and Judge Weissmann concur.

Altice, C.J., and Weissmann, J., concur.