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COA affirms child molesting conviction, sentence

February 11, 2019


A Carroll County man’s sentence of 40 years in prison for molesting his girlfriend’s 7-year-old daughter was upheld Monday. An appellate panel rejected his arguments that evidence from the victim’s exam was wrongly excluded and that his sentence was inappropriate, among others.

A jury in Delphi convicted Michael R. Heckard of two counts of Level 1 felony child molesting. The young victim told her mother that Heckard, 41, had molested her in the bathroom of her mother’s home while her mother was at work. The mother called authorities, after which a sexual assault exam was conducted on the girl at Riley Children’s Hospital in Indianapolis. The exams found DNA matching Heckard.

Jena Lane, a forensic nurse at IU Health, conducted the exam on the victim and testified about findings. Heckard argued on appeal that the trial court erred in excluding evidence related to the victim’s anal tear that was discovered in the exam, which he claimed may have been caused by her prior treatment for constipation. Lane said she was forbidden from answering questions about the victim’s medical records or history of treatment, because doing so could violate the Health Insurance Portability and Accountability Act.

Heckard’s counsel then made an offer of proof and contends on appeal that the trial court erred in failing to direct Lane to answer further questions about what could have caused the tear. But the Indiana Court of Appeals rejected those claims and others Monday, affirming the conviction and sentence in Michael R. Heckard v. State of Indiana, 18A-CR-1376. 

Appellate Judge Elizabeth Tavitas wrote that even if the court did err, any error was harmless. “To be clear, the trial court did not deny Heckard the opportunity to present an offer of proof; the trial court denied defense counsel’s way of presenting the offer of proof. Ultimately, during the offer of proof, Lane testified that the doctor’s impression was that ‘the tears could be from constipation.’”

The panel observed in a footnote that when Heckard sought to admit a page from Lane’s report, the state requested that the entire report be admitted, at which point Heckard withdrew his request. “That was Heckard’s choice,” Tavitas wrote. “In other words, Heckard’s true complaint on this issue is simply that he could not present evidence in the exact way in which he desired. Any error by the trial court in this regard was harmless.” The panel also noted that Heckard was not charged with a crime involving penetration, nor was any such evidence presented.

The COA also rejected Heckard’s claim that he was wrongly charged with more than one offense under the continuing crime doctrine. In this case, the panel wrote, while the crimes took place in a single incident, Heckard was charged for performing a sex act on his victim, then forcing her to perform a sex act on him. “Therefore, Heckard’s convictions did not violate the continuous crime doctrine because Heckard was not charged twice with the same continuous offense,” according to the panel.

Heckard also failed to convince the COA that his sentence was inappropriate. While the advisory sentence for a single Level 1 felony is 30 years, the court in its discretion may impose a range between 20 and 50 years in prison. Here, the victim’s age and Heckard’s violation of a position of trust in victimizing the child were factors that do not make his sentence inappropriate, the panel concluded. 


 

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