Randall Crossley, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

[1] Randall Crossley molested his step-granddaughters, F.K. and A.K., then ages 8 and 10, respectively. A jury found him guilty of three counts of Level 1 felony child molesting and one count of Level 5 felony child solicitation for which he was sentenced to 60 years imprisonment. Crossley appeals, arguing the trial court erroneously admitted audio recordings of pre-trial forensic interviews of F.K. and A.K. before the two children testified in court before the jury. Crossley also challenges his sentence as inappropriate. We affirm.

Facts

[2] In 2019, A.K. and F.K. (collectively, Children) lived with their parents (Parents) in a two-bedroom apartment in Scottsburg, Indiana. A.K., F.K., and their half-brother slept in the upstairs bedroom on mattresses placed on the floor until a bed bug invasion caused them to sleep in the first floor living room. Parents occupied the downstairs bedroom.

[3] Crossley, though not biologically related to A.K. and F.K., is the biological grandfather of their half-siblings. The children referred to him as their “stepgrandpa” or “Papaw,” and he would visit the family often at their apartment. Amended Tr. Vol. III, pp. 47, 96.

[4] During the summer of 2019, Crossley and 8-year-old F.K. were in the bedroom alone with the lights off while she played on his cell phone. F.K. testified: “I was laying on my stomach with my head at the bottom of the bed and my feet at the top and he was laying on his back with his head at the top of the bed and his feet at the bottom.” Id. at 72. She also testified that after Crossley grabbed her legs and removed her skirt and underwear, “he laid on his back and he pulled me up to where my private front was over top of his mouth so my head ended up down in his groin area.” Id. Crossley then “put my private front on his mouth,” according to F.K. Id. When asked what happened when he did this, she testified: “He started like opening and closing his mouth a lot ․ [k]ind of like a sucking motion.” Id. at 72-73.

[5] When asked how it felt, F.K. testified: “It hurt ․ I was kind of scared and I felt kind of gross.” Id. at 73. The incident ended an estimated 10 minutes later when A.K. “came up the stairs and turned the light on.” Id. F.K. testified that when this happened, Crossley “had like tossed me back over to the other side of the bed.” Id. Crossley later went downstairs to get himself coffee and asked F.K. if she “liked it.” Id. at 74.

[6] Recounting the same incident, A.K. testified that she saw Crossley with his face on F.K.’s vagina. She compared the sounds she heard from Crossley as similar to that when “your mouth is like really wet and like you open and you close it.” Id. at 103.

[7] A.K. also described incidents in which Crossley sexually assaulted her. A.K. testified that she once woke up to find herself missing clothing and on top of Crossley with his penis inside her vagina. A.K. testified that “it kind of hurt,” and she felt “like I wanted to cry.” Id. at 101. A.K. found her missing clothes, which “were sticky,” by F.K.’s bed. Id. at 100-01.

[8] A.K. described another similar incident in which she went to bed in a tank top and leggings and woke up feeling Crossley's “mouth on my vagina.” Id. at 98. He had removed her clothes, according to A.K., and placed them in her closet. She asked him what he was doing, kicked him, and then stood up. When A.K. asked Crossley where her clothes were, he told her that they were in the closet. A.K. recounted that her clothes retrieved from the closet “were sticky” in the area “between where my leg holes were.” Id. at 98. She testified that she changed her clothes due to the sticky substance. Id. at 99.

[9] Also, during that summer, Crossley, while “pointing to his penis,” asked A.K. “to give him a blowjob.” Id. at 102. A.K. admitted she did not know what he meant. Id. Crossley instructed both children to keep the abuse secret and warned them that they would get in “really big trouble” if they told anyone. Id. at 103-04.

[10] In August 2019, Children were removed from Parents’ home and placed in foster care due to Parents’ drug use and the condition of their home. While Children lived in foster care from September 2019 through March 2020, they had regular contact with therapists, workers from the Indiana Department of Child Services (DCS), and Parents, whose visits were supervised. Neither girl disclosed Crossley's sexual abuse during this approximate six-month period.

[11] In March 2020, Children were taking a bath when A.K. accidentally poked F.K. in the buttocks, either with her finger or with a rubber duck. F.K. became upset and told her foster mother about the incident. The foster mother spoke to Children about inappropriate touching, explaining that no one should touch Children's private areas without authorization. After this discussion, A.K. asked to speak with her foster mother privately. A.K. disclosed that Crossley had sexually abused her. When the foster mother asked F.K. whether she had been abused, F.K. made a similar disclosure.

[12] The foster mother quickly notified authorities of Children's reports of abuse. Children immediately underwent forensic interviews conducted by a DCS family case manager at the DCS local office.¹ During these interviews, for which only audio recordings exist, Children separately provided detailed accounts of sexual abuse by Crossley. A.K. explained that she disclosed the abuse six months after the last molestation because her foster family “made me feel safe.” Id. at 106.

[13] The State charged Crossley with three counts of Level 1 felony child molesting and one count of Level 5 felony child solicitation. Before trial, the State notified Crossley and the court of its intent to introduce at Crossley's trial both the audio recordings of Children's forensic interviews and the in-person testimony of Children. Crossley objected, contending the recordings were hearsay lacking sufficient indicia of reliability and therefore inadmissible. After a hearing on this issue, at which Children testified and were subject to cross-examination by Crossley, the trial court stated that the recordings and Children's testimony would be admissible at trial.

[14] At trial, the State presented both the recordings of the interviews and the in-person testimony from A.K. and F.K. Each child's forensic interview was substantially consistent with the child's subsequent trial testimony. Crossley testified in his own defense, denying the allegations. The jury returned verdicts of guilty as charged. After entering judgment of conviction, the trial court sentenced Crossley to:

• Count 1 (child molesting): 30 years

• Count 2 (child molesting): 30 years

• Count 3 (child molesting): 30 years

• Count 4 (child solicitation): 3 years

The court ordered counts 2, 3, and 4 to run concurrently with each other but consecutively to Count 1, for an aggregate sentence of 60 years imprisonment. Crossley appealed.

Discussion and Decision

[15] Crossley claims the trial court abused its discretion in admitting Children's recorded forensic interviews when Children also testified at trial to essentially the same things. He also challenges his sentence, claiming it is inappropriate under Indiana Appellate Rule 7(B) in light of the nature of the offense and his character. We conclude Crossley waived his claim of error in the admission of the recordings of the forensic interviews and that Crossley's sentence is not inappropriate.

I. Admission of Recorded Statements

[16] A trial court has discretion to admit or exclude evidence, and we review such a decision only for an abuse of discretion. Dilts v. State, 49 N.E.3d 617, 627 (Ind. Ct. App. 2015). “An abuse of discretion occurs when the court's decision is clearly against the logic and effect of the facts and circumstances before it.” Id.

[17] Crossley contends the trial court abused its discretion in admitting Children's audio-recorded forensic interviews because this admission violated Indiana Code § 35-37-4-6, commonly known as the protected persons statute (the PPS). A.K. and F.K. are “protected persons” under the PPS because they were less than 14 years old at the time of the offenses but less than 18 years old at trial. See Ind. Code § 35-37-4-6(c)(1) (2024). The PPS allows recorded statements of protected persons to be admitted at trial only if certain requirements, including the following, are met:

(1) The court finds, in a hearing:

(A) conducted outside the presence of the jury; and

(B) attended by the protected person in person or by using closed circuit television testimony as described in section 8(f) and 8(g) of this chapter;

that the time, content, and circumstances of the statement or videotape provide sufficient indications of reliability.

(2) The protected person:

(A) testifies at the trial; or

(B) is found by the court to be unavailable as a witness [for specified reasons].

Ind. Code § 35-37-4-6(f) (2024).

[18] Crossley claims two violations of this statute. First, he argues that the PPS barred the dual admission of both recordings of Children's forensic interviews and Children's in-court testimony because each child's recorded statement was consistent with that child's in-court testimony. Alternatively, Crossley contends that even if this dual admission was proper, the PPS barred admission of the recorded forensic interviews at trial before Children's in-court testimony. Crossley's arguments are grounded in Tyler v. State, 903 N.E.2d 463, 467 (Ind. 2009), which established that a protected person's testimony may be presented either in open court or by prerecorded statements, but not both.

[19] Here, the trial court authorized this dual admission of the recorded interviews and Children's in-court testimony under the PPS, noting that “the witnesses will be available for cross examination at trial.” Amended Tr. Vol. II, p. 117. Crossley now argues for the first time that this ruling contravenes Tyler.

[20] Contrary to the trial court's assertion, Tyler is not focused on a defendant's right to cross examination. Rather, Tyler held that the PPS allows recorded statements in lieu of live testimony when children cannot testify without distress—not as a supplement to in-court testimony. Tyler, 903 N.E.2d at 467.

[21] At trial, Crossley offered a different basis for exclusion of the forensic interview recordings. During the pretrial hearing on the State's motion to introduce the recorded forensic interviews, Crossley objected on grounds that those statements lacked sufficient indicia of reliability under subsection (f) of the PPS. Relying on Nunley v. State, 916 N.E.2d 712 (Ind. Ct. App. 2009), he argued, among other things, that the six-month delay between the alleged incidents and the disclosure rendered Children's recorded statements unreliable.

[22] The cumulative nature of the protected person's recorded statements and live testimony was just one reason underlying the Tyler Court's ruling that the PPS did not authorize admission of both. Tyler, 903 N.E.2d at 467. The Tyler Court ultimately determined that the PPS simply did not authorize admission of both the child's recorded statement and live testimony because its “statutory purpose” is “protecting the child from the burden of testifying.” Id. The Court concluded that “if a child or other protected person is sufficiently mature and reliable to testify in open court without serious emotional distress, resort to the PPS is unnecessary.” Id.

[23] At trial, when the State moved to admit the recorded forensic interviews, Crossley simply incorporated his previous arguments. At no time before appeal did Crossley raise Tyler or suggest that the dual admission of a child's recorded statements and in-court testimony is statutorily barred. Crossley briefly mentioned the cumulative impact of the dual admission of the recordings and the testimony, but he did so in the context of his argument that Children's hearsay statements were unreliable due to Children's delayed reporting of the molestations. Specifically, Crossley appeared to argue that the State was introducing Children's molestation accusations in two forms—recordings of forensic interviews and in-court testimony—in an effort to convince the jury that Children's accusations were reliable simply because Children repeated them. Crossley argued that the dual admission was problematic because it made Children's unreliable accusations appear more credible through repetition—not because Tyler prohibits admitting recorded forensic interviews when the children testify.

[24] A defendant may not raise one reason for the admissibility or inadmissibility of evidence at trial and argue a different reason on appeal. Bradfield v. State, 192 N.E.3d 933, 935 (Ind. Ct. App. 2022). When a defendant objects on different grounds at trial than those raised on appeal, the “claim of error ‘is waived.’ ” Id. This is consistent with the purpose of the contemporaneous objection requirement, which “is to give the trial court a chance to avoid or correct the harmful error, thereby securing a fair and proper verdict.” Wilder v. State, 91 N.E.3d 1016, 1022 (Ind. Ct. App. 2018). Here, the trial court never had the opportunity to determine whether Tyler prohibited admission of the recordings of Children's forensic interviews and possibly avert any error in the admission of that evidence.

[25] Crossley does not recognize that his argument has changed from trial to appeal. He also does not suggest the trial court committed fundamental error in the admission of the recorded interviews in violation of the PPS. Therefore, he has waived this claim. See Benjamin v. State, 233 N.E.3d 506, 512 (Ind. Ct. App. 2024) (noting that when an appellant seeks exclusion of evidence based on a different rationale than he offered at trial and fails to allege fundamental error on appeal, “we will not engage in such ․ review”).

II. Crossley's Sentence Is Not Inappropriate

[26] Crossley argues his aggregate 60-year sentence is inappropriate under Indiana Appellate Rule 7(B). Under this rule, we may revise a sentence authorized by statute if, after considering the trial court's decision, we find that the sentence is inappropriate in light of the nature of the offense and the character of the offender. App. R. 7(B). We find Crossley's sentencing argument unpersuasive.

[27] The principal role of Rule 7(B) review “should be to attempt to leaven the outliers,” not “to achieve a perceived ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). In conducting this review, we give the trial court's discretionary sentencing decision “considerable deference.” Id. at 1222. This deference prevails “unless overcome by compelling evidence portraying in a positive light the nature of the offense ․ and the defendant's character.” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). The defendant bears the burden of persuading us that his sentence is inappropriate. Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007), clarified on reh'g, 875 N.E.2d 218 (Ind. 2007).

[28] “When determining whether a sentence is inappropriate, the advisory sentence is the starting point the legislature has selected as an appropriate sentence for the crime committed.” Dean v. State, 222 N.E.3d 976, 990 (Ind. Ct. App. 2003). At the time Crossley committed the Level 1 felony child molestations, the sentencing range for this offense was 20 to 50 years imprisonment, with an advisory sentence of 30 years. Ind. Code § 35-50-2-4(c) (2019). Level 5 felony child solicitation carries a sentence of 1 to 6 years imprisonment, with an advisory sentence of 3 years. Ind. Code § 35-50-2-6(b). Thus, the trial court imposed advisory sentences as to each individual conviction. However, the court ordered Crossley's convictions for the three offenses against A.K. to be served concurrently to each other but consecutively to his conviction for molesting F.K. for a total sentence of 60 years imprisonment.

A. Nature of the Offense

[29] Crossley argues that the nature of his offenses does not support his sentence because: (1) his conduct did not substantially exceed the statutory elements; and (2) the harm to the victims was no greater than that usually associated with these crimes. The record shows otherwise.

[30] Crossley committed multiple acts of child molesting against two members of his extended family—A.K., age 10, and F.K., age 8—over the course of one summer. A.K. testified that Crossley, whom she considered to be her grandfather, performed oral sex on her while she slept, penetrated her vagina with his penis while she slept, and solicited oral sex from her. F.K. testified that Crossley performed oral sex on her.

[31] Crossley's conduct exceeded the statutory elements in several ways. First, the victims’ ages were significantly below the statutory age threshold of 14 years for child molesting as a Level 1 felony. Ind. Code § 35-42-4-3(a); see Kimbrough v. State, 979 N.E.2d 625, 628 (Ind. 2012) (“[E]ven where the age of the victim is an element of the offense, the very young age of a child can support an enhanced sentence.”). Second, Crossley committed multiple crimes against two victims over a period of time. See Cardwell, 895 N.E.2d at 1225 (finding that “additional criminal activity directed to the same victim should not be free of consequences” and “multiple victims is highly relevant to the decision to impose consecutive sentences”). Third, A.K. witnessed Crossley molesting her younger sister, F.K., compounding the trauma.

[32] The circumstances surrounding the offenses also aggravated their severity. Crossley was in a position of trust as the children's surrogate grandfather. He committed these crimes in Children's home, depriving them of a sense of safety in their own dwelling. He instructed both children to keep the abuse secret, telling A.K. specifically that she would be in “really big trouble” if she disclosed the abuse. Amended Tr. Vol. III, pp. 103-05. After molesting F.K., he asked her if she “liked it,” demonstrating a disturbing lack of regard for her wellbeing. Id. at 74.

[33] The lasting effect of this abuse on the victims exceeded what might typically be expected. A.K.’s victim impact statement described how Crossley “took away [her] innocence and [her] image about men” and affected her “comfort in [her] skin.” Amended Tr. Vol. V, p. 37. F.K.’s victim impact statement explained that Crossley “betrayed [her] trust in not only himself, but in any mankind” and left her “feeling often victimized, even by the innocent.” Id. at 39. The trial court observed that A.K.’s demeanor showed the crimes “had a devastating effect on her.” Id. at 109. Contrary to Crossley's claim, the nature of the offense supports his 60-year sentence.

B. Character of the Offender

[34] Crossley contends his good character—including his lack of criminal history, productive work life, and family support—establishes the inappropriateness of his sentence. Crossley was 67 years old at sentencing with no record of alcohol or drug abuse. Crossley's daughter testified that Crossley, a retired factory worker, was “a good man who cared about children.” Id. at 64.

[35] But Crossley's character must also be evaluated in light of his crimes. See Sorenson v. State, 133 N.E.3d 717, 729 (Ind. Ct. App. 2019) (appellate review considers “what [the offense] reveals about the defendant's character”) (quoting Guzman v. State, 985 N.E.2d 1125, 1134 (Ind. Ct. App. 2013)). Crossley's systematic abuse of two young children in their home—children who viewed him as a grandfather—reveals exceptionally poor character. His abuse of his position of trust, his instruction to the children to keep the abuse secret, and his inquiry as to whether F.K. “liked it” demonstrate a profound lack of regard for these vulnerable children. See Wright v. State, 108 N.E.3d 307, 320 (Ind. 2018) (affirming 60-year sentence after finding defendant's positive character traits could not “redeem” his crimes of molesting two children multiple times). Crossley has failed to show that his sentence is inappropriate in light of his character.

[36] In summary, Crossley's aggregate 60-year sentence reflects the seriousness of his crimes and the harm he inflicted upon multiple victims. He has failed to meet his burden of demonstrating that his sentence is inappropriate.

Conclusion

[37] Given our determinations that Crossley waived his only claim of trial error and that Crossley's sentence is not inappropriate, we affirm his convictions and sentence.

FOOTNOTES

1.   The DCS family case manager who conducted the forensic interview testified that the child advocacy center where such forensic interviews were normally conducted was unavailable due to the COVID-19 pandemic.

Weissmann, Judge.

Judges Bailey and Brown concur. Bailey, J., and Brown, J., concur.