Recorded conversation, conviction are admissible evidence, COA holds

An audiotape of phone conversations between a suspect and the victim’s mother while he was in jail and a testimony from the victim’s mother that she was convicted of assisting a criminal were admissible evidence in a child abuse case, the Indiana Court of Appeals ruled.

The phone calls and testimony’s probative nature outweighed the risk of unfair prejudice and they contained conduct inseparable from the offenses, the judges found.

Philip Kyle was charged with two counts of child molesting. During his incarceration, he had conversations with the victim’s mother, who was also his girlfriend, and convinced her to try to change her son’s story so he could get out of prison. The mother was later convicted of assisting a criminal and sentenced to 45 days in prison.

During the trial for Kyle’s charges, the court allowed three phone recordings with the girlfriend into evidence, to which Kyle did not object. He was found guilty on both counts. Kyle appealed, saying the court should not have allowed the recordings into evidence or the evidence his girlfriend was convicted of assisting a criminal.

The COA ruled in a decision written by Judge Rudolph Pyle that because Kyle did not object to the recordings, he waived that challenge on review. However, even if he hadn’t, the COA ruled Kyle’s claim that the calls offered to show his criminal propensity was not persuasive. The calls were not prior acts, but intrinsic to his defense.

Also, the COA ruled the evidence was probative “as the conversations directly linked Kyle to his attempted cover up,” Pyle wrote. “The jury was entitled to hear this highly probative evidence of his attempts to tamper with a child witness’s testimony.”

For the same reasons, the girlfriend’s charge of assisting a criminal was admissible as well.

The case is Philip D. Kyle v. State of Indiana, 20A03-1507-CR-969.

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