MOORE v. STATE (2025)

MEMORANDUM DECISION

Case Summary

[1] Melvin Moore appeals his two convictions of child molesting, one as a Level 1 felony ¹ and one as a Level 4 felony.² The sole restated issue on appeal is whether the trial court abused its discretion when it admitted evidence related to two of Moore's telephone calls from jail that were discovered and disclosed the day before trial. We affirm.

Facts and Procedural History

[2] Moore is the father of M.M., who was born in January 2013. Moore was in a relationship with M.M.’s mother, Victoria Hardy, from the end of 2011 until sometime in 2017. After the couple broke up, Hardy moved with M.M. and her other children into her own home.

[3] When M.M. was nine or ten years old, Moore was watching M.M. at Hardy's house while Hardy was at work. Moore was in an upstairs bedroom and called to M.M. to join him. In the bedroom, Moore removed his pants and underwear, exposing his penis to M.M. Moore had M.M. touch his penis with her hand, and he put his penis “in” M.M.’s mouth. Tr. v. III at 44. After Moore put his pants back on, Moore said he would “whoop” M.M. if she told anyone, which scared her. Id. at 42.

[4] Moore began dating Shawnte Griffith in September 2022, and they lived together in Griffith's home beginning in January 2023. M.M. spent the night at Griffith's home a couple of times in 2023. During the visits, Griffith saw Moore “smack [M.M.’]s butt and make very rude comments [to M.M.], like her butt's big.” Tr. v. II 181. Griffith was “very uncomfortable” about the comments that Moore made to his daughter. Id. During the visits, M.M. did not want to be around Moore and “gravitate[d]” toward Griffith. Id. at 188. Because she was uncomfortable with the interactions between Moore and M.M., Griffith installed a surveillance camera in her living room.

[5] One night at Griffith's house at “about the end of [the] summer” of 2023, when M.M. was around ten years old, Moore exited the bedroom area of the house with an erection and walked toward the living room where M.M. was asleep on a couch. Id. at 189. Moore positioned himself and M.M. in a “back corner” of the house, away from the camera. Id. at 193. There, Moore exposed his penis to M.M. and had her touch his penis with her hand and her mouth.

[6] The following morning, Griffith reviewed the camera footage and saw Moore exit the bedroom area with an erection and then position himself near M.M. Griffith confronted Moore about what she saw in the video, the conversation “did not go well,” and they broke up soon thereafter. Id. at 198. At “about the same time,” Griffith contacted Moore's stepfather and told him what she had seen on the camera footage. Id. at 202. On January 19, 2024, Moore's stepfather informed Hardy about Griffith's statement. Hardy subsequently spoke to Griffith and M.M., and then she called the police. The police began an investigation into the molestation allegations.

[7] At some point in January 2024, Moore was incarcerated on charges from another case. While he was incarcerated, he made several phone calls to Griffith from the jail wherein he discussed the molestations. In a call on January 25, 2024, in response to Griffith's question about whether Moore molested M.M., Moore said, “Listen. If I was super drunk and I did, I truly f***ing apologize, but I do not f***ing remember doing s**t like that to my motherf***ing child.” Ex. 4 at 2:25-2:35. Moore also discussed the molestation in two calls with Griffith on January 30, 2024. In those calls, Griffith asked Moore to answer, “yes or no,” regarding whether he molested M.M. Ex. 5 at 6:40-14:50. Moore eventually said, “Yes. That's what I'm sitting here trying to tell you.” Id. at 11:30-11:50. Later in the call, in response to continued questioning by Griffith about the molestation of M.M., Moore stated: “It's only been one f***ing time that I even f***ing remember that I even f***ing did that.” Ex. 6 at 4:30-5:00.

[8] In two calls on March 6, 2024, Griffith and Moore argued about whether Moore molested M.M. at Griffith's house. At one point in the argument, Moore said, “Look, shut the f**k up. Everything she said happened. That's how it happened.” Ex. 8 at 4:15-4:25. Griffith asked Moore why he molested M.M. as follows:

Griffith: I want to know why, how did it even f***ing happen? How did you even become attracted to your own child?

Moore: No, no.

Griffith: How did you even get pleasure? How did you c*m, c*m, over a child?

Moore: I don't know.

Griffith: You know what I'm saying?

Moore: Must have been under the influence.

Griffith: Those are the answers that I would love to know, because I don't understand it. Okay?

Moore: Must have been under the influence when all of this started and just kept going.

Id. at 12:00-13:00. Moore further stated, “Okay. Okay. Okay. Okay. So everything that you think that I did, I did, okay? Because I can't get you to listen to me.” Id. at 14:50-15:10.

[9] On May 23, 2024, the State charged Moore with two counts of Level 1 felony child molesting and one count of Level 4 felony child molesting. In the information for each child molesting count, the State listed: “Witnesses: ․ Jail Call/Tablet Representative.” App. v. II at 11-13. On August 30, 2024, the State amended its witness list to specify that “Jeff Kroemer, Allen County Jail” would testify regarding Moore's “Jail Calls.” Id. at 50.

[10] A three-day jury trial began on September 3, 2024. On the first day of trial, Moore moved to exclude evidence related to six jail calls, arguing that the calls contained hearsay and were more prejudicial than probative. Moore further argued that the two jail calls that were made on March 6, 2024, should be excluded because they had been discovered by the State and provided to him the night before trial. The State responded that Moore had made multiple calls per day since January 1, 2024, resulting in a large volume of calls to review. The State explained that it had found the two March jail calls just “last night.” Tr. v. II at 14. The State further explained that it had previously informed Moore's counsel that it was reviewing Moore's jail calls, that one January call was provided earlier in the discovery process, and that other calls were “sent last week.” Id. The State argued that the remedy for any late discovery of the two March jail calls was a continuance, not the exclusion of evidence related to the calls.

[11] The trial court noted that Moore knew he was being recorded on the jail calls, Griffith was scheduled to testify about the calls Moore made to her, and that, “It's unfortunate that the defendants don't always tell the lawyers everything.” Id. at 11. The trial court stated, “I agree with the State that exclusion is an extreme remedy. I don't know if you're asking for anything else this morning, or if you're ready for trial.” Id. at 11-12. Moore's counsel responded,

And as far as the calls that were provided as discovery last night, I think the remedy for that is exclusion of evidence, not asking for a continuance. This man has a right to go to trial. If I get new discovery at 10:30 last night of calls that were made last March, that's just late discovery. That's discovery that could have been found earlier. It wasn't, and perhaps no one's to blame for that. It is what it is. But, I mean, one of these calls, I literally have yet to even listen to all the way through, so I don't know what the whole call says yet. So, my objection to those two brand new calls is that that is just late discovery. He hasn't heard them. I haven't heard them. I can't even make a proper objection because I haven't listened to the entire call yet this morning.

Id. at 12-13.³

[12] The trial court ruled that evidence regarding the two March jail calls would not be excluded based on the late discovery objection. However, the trial court instructed the State as follows regarding the March phone calls: “don't mention any specific—anything in the call until there's a transcript or there's an opportunity to listen and hear everything that's been said.” Id. at 15.

[13] At the beginning of the second day of trial, Moore renewed his request to exclude the two March jail calls as “late discovery.” Id. at 164. Moore's counsel stated,

[The calls] weren't made over the weekend. They were made back in March. It's on the prosecutor to get those calls to me and listen to them sooner. It's not my client's fault that he made 300 calls. He's allowed to do that. I mean, if it's a financial issue or if the prosecutor doesn't have enough help, I mean, I get that, but that's not [Moore's] fault.

Id. at 164-65. Moore also renewed his objection to evidence regarding the other jail calls based on hearsay. The trial court took the objections under advisement and, following its subsequent review of the transcripts of the jail calls and the case law, ruled that evidence regarding all the jail calls was admissible. Audio recordings of the jail calls were admitted and published to the jury.

[14] During the jury trial, M.M. testified about Moore's molestations of her. Hardy and Griffith also testified for the State. At the close of the State's case, Moore moved for directed verdict on one of the Level 1 felony counts, and the court granted that motion. At the conclusion of the trial, the jury found Moore guilty of the remaining two counts, and the court subsequently sentenced Moore accordingly. This appeal ensued.

Discussion and Decision

[15] Moore challenges the admission of evidence regarding the two March jail calls,⁴ alleging they should have been excluded as violations of the local criminal discovery rule, which generally requires that the State disclose discovery “on or before thirty (30) days following the initial hearing.” Allen LR02-TR26-1(A).⁵

[T]rial courts have broad discretion in dealing with discovery violations by the State in the alleged late disclosure of evidence to the defense. Berry v. State, 715 N.E.2d 864, 866 (Ind. 1999). We may reverse the manner in which the trial court deals with such an alleged violation only for an abuse of that discretion involving clear error and resulting prejudice. Id.

Kennedy v. State, 934 N.E.2d 779, 784 (Ind. Ct. App. 2010).

[16] “Generally, the proper remedy for a discovery violation is a continuance.” Id. (quoting Berry, 715 N.E.2d at 866). Exclusion of the evidence at trial is an extreme remedy that is warranted only if the State's actions were deliberate and its conduct prevented a fair trial. Id. Moreover, a defendant's failure “to alternatively request a continuance upon moving to exclude evidence, where a continuance may be an appropriate remedy,” waives any claim of error. Warren v. State, 725 N.E.2d 828, 832 (Ind. 2000). Thus, in Alcantar v. State, for example, this Court held the defendant had waived review of the alleged discovery violation regarding a recorded interview where his “counsel did not request a continuance (apparently for reasons of trial strategy) and declined the continuance offered by the trial court (under circumstances where a continuance would have been useful).” 70 N.E.3d 353, 356 (Ind. Ct. App. 2016).

[17] Here, a continuance would have remedied the prejudice Moore contends he suffered. That is, he would have had time to consult with counsel and provide context to the calls, obtain an examination to determine if he had mental health conditions “that would explain his agreeableness as a coping mechanism when facing an individual constantly berating him,” and/or consider a plea in light of the new evidence. Appellant's Br. at 16. However, Moore refused to move for a continuance as an alternative to exclusion. Therefore, the issue is waived. See Warren, 725 N.E.2d at 832.

[18] Even if we addressed Moore's argument on the merits, he would not prevail. Moore admitted that the State had not discovered the March jail calls until the night before trial. Tr. v. II at 8. Moreover, there is no indication that the State's late discovery and disclosure of the March jail calls was intentional, and Moore never made any such contention at trial. In fact, Moore's counsel stated that, although he believed the calls “could have been found [by the State] earlier, ․ perhaps no one's to blame for” the fact that they were not. Id. at 12. His counsel also acknowledged the large number of jail calls and suggested that the State's failure to find the calls earlier may have been “a financial issue” and “if the prosecutor doesn't have enough help, I mean, I get that ․” Id. at 164-65.

[19] Furthermore, the record does not disclose any evidence that the court's challenged ruling denied Moore a fair trial. First, Moore had advance notice that his jail calls were being recorded and that Griffith was scheduled to testify about those calls. In addition, the May 23, 2024, information for each child molesting count listed “Jail Call ․ Representative” as a witness. App. v. II at 11-13. Thus, the introduction of evidence regarding any of his jail calls should not have been a surprise to Moore that prevented a fair trial. Second, the court ordered the State not to mention the details of the March jail calls to the jury until after Moore had a chance to review the calls, thus preventing the “ambush” that Moore asserts. Appellant's Br. at 17.⁶

[20] We conclude that the trial court did not abuse its discretion by admitting evidence related to the March jail calls.

[21] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-42-4-3(a)(1).

2.   I.C. § 35-42-4-3(b).

3.   By separate order of this Court, we granted the State's motion to strike the purported “addendum” to Moore's brief, which was an affidavit that was not submitted to the trial court, and any related references in Moore's brief. Specifically, we struck from Moore's brief his footnote one and the statement, “defense counsel declined to request a continuance without consulting Melvin,” Appellant's Br. at 11, because those matters were not presented to and considered by the trial court. See, e.g., Haggarty v. Haggarty, 176 N.E.3d 234, 239 n.1 (Ind. Ct. App. 2021) (“[W]e do not consider on appeal any evidence that was not presented to the trial court.”); see also Ind. Appellate Rule 27 (“The Record on Appeal shall consist of the Clerk's Record and all proceedings before the trial court ․”). Appellate Rule 46(H), cited by Moore, does not authorize our consideration of any evidence not before the trial court.

4.   To the extent Moore asserts that the jail calls from the other dates should also be excluded because they were “untimely discovered to the defense without explanation,” Appellant's Br. at 12, that assertion is waived because it was not raised in the trial court, and Moore does not allege fundamental error. See, e.g., State v. Allen, 187 N.E.3d 221, 228 (Ind. Ct. App. 2022) (citing Endres v. Ind. State Police, 809 N.E.2d 320, 322 (Ind. 2004)) (“Arguments raised for the first time on appeal, even ones based upon constitutional claims, are waived for appeal.”), trans. denied; Bowman v. State, 51 N.E.3d 1174, 1179 (Ind. 2016) (holding the failure to raise the issue of fundamental error in an initial brief resulted in waiver of issue “entirely”).

5.   The rule further provides that “[n]ewly discovered material within the above categories shall be provided to opposing counsel as soon as reasonably possible following discovery of same.” Allen LR02-TR26-1(A)(10). We also note that the local rule, which is a General Order of the Allen Superior Court, provides: “(N) Nothing in this Order shall be in contravention of case law or statute.” Allen LR02-TR26-1(N).

6.   Because we find no error, we do not address the State's claim that any error was harmless.

Bailey, Judge.

Vaidik, J., and DeBoer, J., concur.