Denny Ray Bass, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Case Summary

[1] Denny Ray Bass was convicted of Level 1 felony child molesting, four counts of Level 4 felony child molesting, and Level 5 felony child solicitation. He now appeals, arguing that the trial court committed fundamental error by allowing testimony about the victims’ allegations before the victims themselves testified. Finding no fundamental error, we affirm.

Facts and Procedural History

[2] In 2014, Bass married T.B. (“Great-Grandmother”). The couple lived in a house together but slept in separate bedrooms. Two of Great-Grandmother's great-granddaughters, H.L. and L.L., would visit Great-Grandmother and Bass at the house and sometimes stayed overnight. H.L. and L.L. often played video games with Bass in his bedroom. The girls took turns playing the games, and Bass would sit in a chair with the girl playing sitting on his lap while the other girl sat at a fold-out desk. “[E]very time [they] played video games,” Bass touched the girls on their “private parts.” Tr. Vol. III pp. 126, 130. One weekend in December 2022, eight-year-old H.L. and seven-year-old L.L. were staying the night with Bass and Great-Grandmother. The girls were in Bass's bedroom, and “he want[ed] [them] to play the dare game,” a game in which “[y]ou're supposed to do what the person tells you -- whichever person's turn it is.” Id. at 123, 129. Bass told the girls to pull down their pants and either kiss the wall or kiss him.

[3] H.L. and L.L. decided to tell Great-Grandmother what Bass had done to get Bass to “stop touching [them] every time [they] go over there.” Id. at 135. The girls went into Great-Grandmother's bedroom, and H.L. said, “I need to tell you something.” Id. at 20. H.L. “hesitated for a long time” but eventually told Great-Grandmother about the dare game and Bass asking them to pull their pants down. Id. L.L. also told Great-Grandmother about Bass touching her. Great-Grandmother went to confront Bass and found him in the kitchen with his coat on. She “started beating on his chest” and saying, “How could you?” and Bass stood there and “just took it.” Id. at 22-23. Bass left the house, and as he was walking out, he yelled, “[T]hanks girls for nothing. I have nowhere to go.” Id. at 22.

[4] That same night, Great-Grandmother called H.L. and L.L.’s mother (“Mother”) and told her what the girls disclosed. Mother came to the house, picked up H.L. and L.L., and took them to the Harrison County Sheriff's Department to report the allegations. The girls then went to the hospital for sexual-assault examinations. The police reported the allegations to the Department of Child Services (DCS), and DCS set up forensic interviews for H.L. and L.L. at Comfort House. The case was assigned to Detective Carri Bowers, who observed the girls’ forensic interviews on January 2. Mother gave Detective Bowers clothing that H.L. and L.L. wore while staying with Great-Grandmother and Bass that December, and Detective Bowers submitted the clothing for DNA testing. Detective Bowers also obtained a search warrant for the house and found in Bass's bedroom a gaming console, several video games, and the chair the girls described sitting on while playing the games. Police eventually found Bass at a motel in Corydon.

[5] The State charged Bass with four counts of Level 4 felony child molesting (two counts for L.L. and two counts for H.L.) and two counts of Level 5 felony child solicitation (one for L.L. and one for H.L.). After the State filed charges, L.L. disclosed to Mother that Bass “had licked her in her vagina area.” Id. at 46. Mother reported the disclosure to Detective Bowers, and L.L. went to Comfort House for another forensic interview in April, which Detective Bowers observed. That time, L.L. disclosed that Bass “had licked her vagina.” Tr. Vol. II p. 246. In May, the State added a charge for Level 1 felony child molesting.

[6] A jury trial was held in May 2024. Detective Bowers explained the typical steps in her investigation after a child discloses sexual abuse and testified, without objection from Bass, that H.L. and L.L. each made “a disclosure of sexual abuse” during their initial forensic interviews. Id. at 233. Detective Bowers also testified about the DNA testing of the girls’ clothes. When asked about a particular shirt of H.L.’s, Detective Bowers explained that samples were taken from the “abdomen section” of the shirt, but she “believe[d] that it should have been tested within the breast area” because the girls “disclosed that [Bass] had touched them on the breast and vagina,” and “H.L. was able to tell [her] that [Bass] touched her on the breast while she was wearing that shirt.” Id. at 244-45. Bass did not object to this line of testimony. Detective Bowers further testified that “L.L. had disclosed that [Bass] had licked her vagina” during her second forensic interview. Id. at 246. She explained that, after this additional disclosure, she prepared a supplemental probable-cause affidavit alleging that Bass committed Level 1 felony child molesting. Again, Bass made no objection.

[7] By the time of trial, Great-Grandmother and Bass were divorced. When the State asked Great-Grandmother why she and Bass divorced, she answered, “Because he molested my grandchildren.” Tr. Vol. III p. 13. Bass did not object to this response. During Mother's testimony, the State asked her why L.L. went back to Comfort House for a second forensic interview. Mother explained that L.L. “had given [her] some information that [Bass] had licked her in her vagina area,” so Detective Bowers wanted L.L. to do another interview. Id. at 46. Bass did not object to this line of testimony.

[8] L.L. and H.L. were the State's final witnesses. L.L. testified that Bass “touched [her] up here, down here, and [on her] butt” and gestured to where Bass touched her. Id. at 100. When clarifying what L.L. meant by “up here,” the State showed her a diagram of a boy and a diagram of a girl, and she indicated on the diagram of the girl where Bass touched her. L.L. explained that while playing video games with Bass, he would have one hand on the controller and would “rub[ ]” her “[u]nder [her] underwear” with his other hand, which felt “weird” and “did not feel good.” Id. at 92, 94. She described one incident when she “was in the chair” playing a video game and Bass got down on the floor, “put[ ] his tongue out,” and “licked [her] down here.” Id. at 96, 99, 104. During her testimony, the State had L.L. draw a picture of this incident, but the picture wasn't admitted into evidence. H.L. testified that while L.L. was on Bass's lap playing video games, she saw Bass “touch[ ] L.L. in her bottom private parts ․ [o]ver the clothes,” that she saw this happen “two or three” times, and that “the same thing happened to [her].” Id. at 126. H.L. recalled that, in addition to Bass touching her while they played video games, he touched her once while they were in the pool at Bass and Great-Grandmother's house. She also testified that during the December 2022 weekend, Bass touched her over her clothes and tried unzipping her pajamas “to rub [her] under [her] clothes,” but she “told him no.” Id. at 128-29. Both girls identified photos of Bass's bedroom and the chair on which they sat while playing video games.

[9] After resting, the State moved to dismiss the count of Level 5 felony child solicitation as to L.L., which the trial court granted. The jury found Bass guilty of the six remaining counts, and the court sentenced him to 41 years.

[10] Bass now appeals.

Discussion and Decision

[11] Bass contends the trial court erred by allowing “drumbeat repetition of the child witnesses’ accusations through several witnesses before the child witnesses testified.” Appellant's Br. p. 5. Bass acknowledges that he did not object to any of the testimony he challenges at trial and therefore must establish fundamental error on appeal.

[12] Failure to object to the admission of evidence at trial generally results in waiver and precludes appellate review unless the admission constitutes fundamental error. Halliburton v. State, 1 N.E.3d 670, 678-79 (Ind. 2013). “Fundamental error is an extremely narrow exception to the waiver rule where the defendant faces the heavy burden of showing that the alleged errors are so prejudicial to the defendant's rights as to make a fair trial impossible.” Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014), reh'g denied, abrogated on other grounds by Konkle v. State, 253 N.E.3d 1068 (Ind. 2025). To establish fundamental error, the defendant must show that, under the circumstances, the trial court erred in not sua sponte raising the issue because the alleged error constituted a clearly blatant violation of basic and elementary principles of due process and presented an undeniable and substantial potential for harm. Id.

[13] Bass contends the following testimony constituted “drumbeat repetition” of H.L.’s and L.L.’s allegations: Detective Bowers's testimony that both H.L. and L.L. reported Bass “had touched them on the breast and vagina”; Detective Bowers's testimony that each girl disclosed sexual abuse during their initial forensic interviews; Detective Bowers's testimony that L.L. disclosed during her second interview that Bass “licked her vagina”; and Mother's testimony that L.L. told her Bass “had licked her in her vagina area.”¹ In support of this argument, Bass relies on Modesitt v. State, 578 N.E.2d 649 (Ind. 1991). There, Modesitt was charged with molesting his girlfriend's daughter. Before the State called the victim to testify at trial, it presented testimony of three adult witnesses about what the victim said Modesitt did to her: (1) her mother's testimony “in detail concerning [her] description of several varied and distinct instances of molestation involving breasts, vagina and penis that occurred over a two-year period”; (2) a welfare caseworker's testimony about “descriptions the victim gave to her,” which “both overlapped and varied in specific detail from what the victim had told her mother”; (3) and a videotaped deposition and letter from a psychologist, which described “what the victim had related to her concerning these same, and additional, instances of sexual molestation.” Id. at 650. The victim's subsequent testimony “corroborate[d] a majority of the acts of molestation previously testified to, but d[id] not corroborate each of the alleged acts.” Id. Our Supreme Court concluded that the “drumbeat repetition” of the victim's statements by the other witnesses before the victim testified “precluded direct, immediate cross examination of the statements and constitutes error requiring reversal.” Id. at 652. The Court therefore reversed Modesitt's convictions, holding that it “could not say that the drumbeat repetition of the victim's original story prior to calling the victim to testify did not unduly prejudice the jury.” Id.

[14] The testimony Bass challenges is not the kind of detailed testimony that was at issue in Modesitt. Bass contends the witnesses here “provided more coherent and detailed accusations” than H.L. and L.L., Appellant's Br. p. 16, but this claim is not supported by the record and ignores the context of the challenged testimony. When Detective Bowers testified that both H.L. and L.L. disclosed that Bass touched their breasts and vaginas, she was explaining why she believed the “breast area” of H.L.’s shirt should've been tested for DNA. Her testimony that each girl made “a disclosure of sexual abuse” during their forensic interviews came after the State asked, “You previously testified that when children make a disclosure of sexual abuse, that prompts an additional investigation, correct?” Tr. Vol. III p. 233. And when Detective Bowers testified that L.L. disclosed Bass “had licked her vagina,” she was explaining what she included in her supplemental probable-cause affidavit after L.H.’s second forensic interview and why the State added a charge of Level 1 felony child molesting. Mother's testimony that L.L. told her Bass “had licked her in her vagina area” was in response to the State asking why L.L. went back to Comfort House for a second forensic interview.

[15] Unlike in Modesitt, the witnesses here briefly referenced the victims’ disclosures while explaining the course of events that followed without giving an elaborate account of what either girl disclosed. Further, their statements contained no more detail than H.L.’s and L.L.’s later testimony. H.L. testified that she saw Bass touch L.L.’s “bottom private parts” several times while playing video games and that “the same thing happened to [her].” L.L. testified that Bass “touched [her] up here” and “down here” and indicated where Bass touched her both by gesturing on her body and circling on a diagram of a girl. She also explained how Bass “licked [her] down here” and drew a picture of her playing a video game while Bass was on the floor with “his tongue out.” Considering the context and brevity of Detective Bowers's and Mother's statements, as well as the corroboration of their statements by H.L.’s and L.L.’s later testimony, we cannot say this evidence is the sort of “drumbeat repetition” that Modesitt prohibits. See Norris v. State, 53 N.E.3d 512, 526 (Ind. Ct. App. 2016) (where challenged testimony “merely provided an overview of the situation and a summary of [the victim's] accusations, without elaborating on [the victim's] evidence” and “was brief and consistent with [the victim's] later testimony,” finding that testimony did not deprive Norris of a fair trial); McGrew v. State, 673 N.E.2d 787, 796 (Ind. Ct. App. 1996) (concluding challenged testimony did not “constitute drumbeat repetition of the victim's statements” where testimony was “brief and consistent with” the victim's later testimony), summarily aff'd in relevant part, 682 N.E.2d 1289 (Ind. 1997).

[16] Even if the challenged testimony did constitute “drumbeat repetition,” it is not the type of drumbeat evidence that would rise to the level of fundamental error. Error in the admission of evidence “does not constitute fundamental error when the jury could overlook the improper evidence and reach the same conclusion based solely upon properly admitted evidence.” Neal v. State, 175 N.E.3d 1193, 1197 (Ind. Ct. App. 2021), trans. denied. Here, the jury could have found Bass guilty without the evidence he challenges. As explained above, H.L. and L.L. testified at length about the incidents of abuse and corroborated each other's accounts. H.L. recalled Bass touching her while she was playing video games, seeing Bass do the same to L.L., and Bass touching her once while in the pool. L.L. testified about Bass “touch[ing] [her] with ․ [h]is fingers and his tongue,” indicated where Bass touched her both by gesturing on her body and circling on a diagram of a girl, and drew a picture of the incident when he “licked [her].” Tr. Vol. III p. 86. The girls also identified photos of Bass's bedroom and the chair on which they sat while playing video games.

[17] Bass's own actions also indicate guilt. When Great-Grandmother went to confront Bass after the girls disclosed to her, he already had his coat on, and he stood there and “just took it” while she hit him and yelled at him. After that, Bass fled the house, and as he was walking out, yelled, “[T]hanks girls for nothing. I have nowhere to go.” Police later found him at a motel in Corydon. See Dill v. State, 741 N.E.2d 1230, 1232 (Ind. 2001) (“Flight and related conduct may be considered by a jury in determining a defendant's guilt.”). Given this evidence of guilt, Bass has not shown that admission of the challenged testimony constituted fundamental error. See Neal, 175 N.E.3d at 1198 (“Neal's evidentiary appeal centered on one isolated instance of [detective's] testimony, which in light of the other unchallenged evidence in the two-day trial, was not so prejudicial to Neal's rights as to make a fair trial impossible.”); Norris, 53 N.E.3d at 526.

[18] Affirmed.

FOOTNOTES

1.   Bass also contends Great-Grandmother's testimony that she and Bass divorced “[b]ecause he molested [her] grandchildren” violated Modesitt. But the crux of Modesitt was that the challenged testimony repeated hearsay statements by the victim. Great-Grandmother's testimony that she and Bass divorced because he molested H.L. and L.L. did not reference any out-of-court statements by H.L. or L.L. Thus, this testimony did not violate Modesitt.Bass further claims that the challenged testimony is “cumulative evidence” barred by Indiana Evidence Rule 403. Appellant's Br. p. 16; see Ind. Evidence Rule 403 (“The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of ․ needlessly presenting cumulative evidence.”). But Bass does not elaborate on this claim—he doesn't explain how Great-Grandmother's, Detective Bowers's, or Mother's testimony was needlessly cumulative or how the danger of presenting it outweighed its probative value. Because Bass failed to develop this argument, it is waived. See Ind. Appellate Rule 46(A)(8)(a).

Vaidik, Judge.

Judges Bailey and DeBoer concur. Bailey, J., and DeBoer, J., concur.