Brian McKale, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Case Summary

[1] Brian McKale was convicted of Level 1 felony child molesting and sentenced to 45 years. He now appeals, arguing the trial court erred in denying his motion for mistrial and in finding an aggravator and that his sentence is not proportional to his offense. We affirm.

Facts and Procedural History

[2] M.O. was born in October 2017. Alyssa is M.O.’s mother. M.O. “primarily” lived with Alyssa's mother, Dawn, but would go “back and forth” between their homes. Tr. Vol. 2 pp. 201-02. In 2020, Dawn and McKale started dating, and McKale moved in that September. M.O. called McKale “Dad.” Id. at 184.

[3] As the weekend of December 2, 2022, began, M.O., then 5 years old, was with Alyssa. Alyssa, however, wasn't feeling well, so M.O. went to Dawn and McKale's house. At some point that weekend, M.O. was sitting on the bed in Dawn and McKale's bedroom playing with her stuffed animals. Dawn was in the kitchen, and McKale was sitting on the bed next to M.O. According to M.O., McKale “put his vagina in [her] mouth.” Id. at 177. She described McKale's “vagina” as “skinny” and “long” and identified it on a drawing of a boy as the genital area. Id. After some time, “[w]hite and gooey” stuff came out of McKale's body part and went on the floor. Id. at 180. McKale tried to clean it up and told M.O. “to keep it a secret.” Id. at 181. McKale also put M.O.’s pink leotard in a laundry basket.

[4] On the morning of Sunday, December 4, Dawn took M.O. to the house of her mother (M.O.’s great-grandmother), Julia, because Dawn and McKale had to go to work. When M.O. was dropped off, she was “crying” and “upset” and “wanted to talk to [Julia].” Id. at 187-88. M.O. disclosed being molested by McKale. The next day, December 5, M.O. underwent a sexual-assault examination. During the exam, M.O. told the nurse that McKale “put his butt in her mouth,” she “leaned over his leg to do it,” and “there was a milky white substance that came out and went onto the floor.” Tr. Vol. 3 p. 11. M.O. described McKale's “butt” as “the dangly thing in the middle.” Id. She also said that McKale used her leotard “to wipe up the mess.” Id.

[5] Also on December 5, the police executed a search warrant at Dawn and McKale's home. Officers found a pink leotard in a laundry basket in Dawn and McKale's bathroom. Using an “alternate light source,” they also found potential biological evidence on the carpet next to the bed. Tr. Vol. 2 p. 230. They cut out a portion of the carpet and sent it and the leotard to the Indiana State Police Laboratory for analysis.

[6] At the lab, the forensic scientist found seminal material on the carpet sample and developed a DNA profile, which was “at least 1 trillion times more likely if it originated from Brian McKale than if it originated from an unknown, unrelated individual.” Tr. Vol. 3 p. 32. The forensic scientist did not find any seminal material on the leotard. Although male DNA was found on the leotard, there was an insufficient quantity for analysis.

[7] The State charged McKale with Level 1 felony child molesting. He later filed a motion in limine seeking to prohibit the State from introducing evidence that there was an insufficient quantity of male DNA found on the leotard for analysis on grounds that it was irrelevant and unfairly prejudicial. The trial court agreed and granted McKale's motion.

[8] At trial, the forensic scientist testified that there was “very strong support” that McKale's DNA was in the seminal material found on the carpet cutting. Id. She also testified that 11 areas of the leotard were tested for seminal material, but none was found. Id. at 33-34. The State then began to lay a foundation for the admission of the forensic scientist's certificates of analysis, which had been redacted to comply with the grant of McKale's motion in limine:

Q Did you issue any reports in this case?

A Yes, sir.

Q How many reports did you issue?

A I have issued two reports.

Q I'm showing you what's been marked as State's exhibit 33 and State's exhibit 34. Do you recognize those exhibits?

A Yes, I do.

Q And what is exhibit 33?

A State's exhibit 33 is a copy of my certificate of analysis or report that I've issued on July 14, 2023, however, it does contain redactions.

Q And is exhibit 33, other than the redactions made due to evidentiary ruling, is that a true and accurate copy of what was issued in this case?

A Yes, other than those redactions, it is true and accurate.

Q And then what is exhibit 34?

A State's exhibit 34 is a certificate of analysis or my report that I have issued on January 13, 2025, and it is, again, a copy of the report I've issued with some redactions.

Id. at 39-40. Defense counsel then asked for a sidebar outside the jury's presence. During the sidebar, McKale objected to the use of the phrasing “except for that it is redacted due [to] evidentiary rulings.” Id. at 40. The trial court agreed, explaining that it made its ruling because of “clear” Indiana law, and instructed the State to “cease and desist with the notion of characterizing it in this way. A more accurate characterization is that it's just not admissible evidence.” Id. at 41. The State agreed that “the Court's ruling is consistent with law. We're not trying to suggest that it's not. So if that is how it's coming across, we apologize.” Id. The State suggested that the Court give an admonishment. Id. The court said it “appreciate[d] that, thank you. Accepted. Forgotten.” Id. at 42. The court then sustained McKale's objection and instructed the State not to use that language anymore. McKale asked that “a motion for mistrial [be] noted on the record” on the basis that the mention of an evidentiary ruling was “confus[ing].” Id. The court denied the motion for mistrial.

[9] After the parties concluded their evidence, the trial court gave the following final instruction:

Certain exhibits in this case were redacted due to what was characterized to the jury as “evidentiary rulings”. In fact and specifically, those exhibits were redacted to exclude inadmissible evidence under Indiana Law. You are to draw no inference or conclusion from the redaction of an exhibit.

Id. at 92. The jury found McKale guilty as charged.

[10] At sentencing, the trial court found two aggravators: (1) M.O. was only 5 years old at the time of the molestation and (2) McKale abused a position of trust. Although not specifically identifying them as mitigators, the trial court acknowledged that McKale had family support and a heart condition. The court sentenced him to an above-advisory term of 45 years.

[11] McKale now appeals.

Discussion and Decision

I. The trial court did not err in denying McKale's motion for mistrial

[12] McKale first contends that the trial court erred in denying his motion for mistrial. Properly preserved prosecutorial misconduct can be the basis of a grant of a mistrial. When reviewing a claim of prosecutorial misconduct properly raised in the trial court, we determine (1) whether misconduct occurred and, if so, (2) whether the misconduct, under all the circumstances, placed the defendant in a position of grave peril to which he would not have been subjected otherwise. Konkle v. State, 253 N.E.3d 1068, 1077 (Ind. 2025). Whether a prosecutor's conduct constitutes misconduct is measured by reference to case law and the Rules of Professional Conduct, and the gravity of peril is measured by the probable persuasive effect of the misconduct on the jury's decision rather than the degree of impropriety of the conduct. Id.

[13] As the State points out, McKale “makes no cogent argument why the State's mention of redactions because of evidentiary rulings was misconduct under case law or ethical rules.” Appellee's Br. p. 12. He has thus waived this issue for review. See Ind. Appellate Rule 46(A)(8)(a).

[14] Even if McKale had proved misconduct, he can't prove grave peril. McKale notes that this was a “one witness” case and forensic evidence was “key” to the State's case. Appellant's Br. p. 13. But as the State highlights—and McKale doesn't acknowledge on appeal—the trial court instructed the jury that “[c]ertain exhibits in this case were redacted due to what was characterized ․ as ‘evidentiary rulings’ ”; however, those exhibits were actually “redacted to exclude inadmissible evidence under Indiana Law.” Accordingly, the court instructed the jury “to draw no inference or conclusion from the redaction of an exhibit.” This instruction sufficiently dispelled any grave peril. See Jarrett v. State, 160 N.E.3d 526, 535 (Ind. Ct. App. 2020) (“Thus, even if Investigator Dickerson's testimony had placed Jarrett in grave peril, the trial court's limiting instruction would have dispelled it and justified the denial of Jarrett's motion.”), trans. denied. The trial court did not err in denying McKale's motion for mistrial.

II. The trial court did not err in finding an aggravator

[15] McKale next contends that the trial court erred in finding as an aggravator that M.O. was 5 years old at the time of the molestation. Our trial courts enjoy broad discretion in identifying aggravators, and we will reverse only for an abuse of that discretion. Coy v. State, 999 N.E.2d 937, 946 (Ind. Ct. App. 2013).

[16] McKale argues that this aggravator is improper because M.O.’s age is an element of the offense. See Ind. Code § 35-42-4-3 (requiring child-molesting victim to be under 14). But even where the age of the victim is an element of the offense, “the very young age of a child can support an enhanced sentence as a particularized circumstance of the crime.” Kimbrough v. State, 979 N.E.2d 625, 628 (Ind. 2012). Here, at the time of the molestation, M.O. had recently turned 5. In finding M.O.’s age to be an aggravator, the trial court explained that “there is a huge difference between a child who just turned 5 and a child that's about to turn 12. Huge difference.” Tr. Vol. 3 p. 108. This was sufficient. See Kimbrough, 979 N.E.2d at 628 (concluding trial court did not err in finding as aggravator that child-molesting victims were 5 and 7 when the molestations first began). The trial court did not err in finding M.O.’s age to be an aggravator.

III. McKale has failed to prove that his sentence is not proportional to his offense

[17] Finally, McKale contends that his 45-year sentence is not proportional to his offense in violation of Article 1, Section 16 of the Indiana Constitution, which provides: “All penalties shall be proportioned to the nature of the offense.” “This requirement allows us to review the duration of a sentence, as it is possible for an otherwise lawful sentence to be unconstitutional as applied to a ‘particular defendant.’ ” Hancz-Barron v. State, 235 N.E.3d 1237, 1249 (Ind. 2024) (quotation omitted). For a sentence to be found disproportionate under Article 1, Section 16, the argument must be based on “the nature of the offenses,” not on the “personal characteristics” of the defendant. Kedrowitz v. State, 199 N.E.3d 386, 409 (Ind. Ct. App. 2022), reh'g denied, trans. denied; see also Hancz-Barron, 235 N.E.3d at 1250.

[18] The maximum sentence for Level 1 felony child molesting is 50 years, see I.C. § 35-50-2-4(c), and McKale was sentenced to 45. He claims that his “nearly” maximum sentence is not proportional to his offense, which involved “a single incident with a single victim” and “no genital-to-genital conduct.” Appellant's Br. p. 16. That “single victim,” however, was McKale's granddaughter (for all intents and purposes), and there is no reason to believe that “genital-to-genital contact” would have been any less traumatic to M.O. than having her grandfather's penis in her mouth to the point of ejaculation. McKale has not shown that his sentence is unconstitutional.

[19] Affirmed.

Vaidik, Judge.

Tavitas, J., and Felix, J., concur.