Nicholas Ryan Anderson, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

Case Summary

[1] Following a jury trial, Nicholas Ryan Anderson was convicted of five counts of child molesting as Level 1 felonies and two counts of child molesting as Level 4 felonies. The trial court sentenced Anderson to an aggregate term of eighty years incarceration. Anderson presents three issues for our review:

1. Did the trial court abuse its discretion in admitting propensity evidence in violation of Ind. Trial Rule 404(b)?

2. Did the trial court err in dismissing two jurors and replacing them with the alternate jurors after deliberations had begun?

3. Is Anderson's sentence inappropriate in light of the nature of the offense and his character?

[2] We affirm.

Facts & Procedural History

[3] F.A. (Mother) and A.S. (Father) have three children, including K.S. and M.S. Mother and Father divorced in 2018. Mother had primary custody of the children and lived in a house in Noble County. In the spring of 2021, Mother began dating Anderson. Anderson moved into the home with Mother and the children in October 2021, and they were married in 2022.¹ When Anderson moved in, K.S. was nine years old and M.S. was six years old.

[4] Shortly after Anderson moved into the home, he began sexually abusing K.S. and M.S. The first time Anderson abused K.S., he entered her bedroom at night, climbed into her bed, and placed K.S.’s hand on his penis over his clothes. K.S. pretended to be asleep while Anderson moved her hand and then she pretended to wake up and told him she had to use the bathroom. When K.S. returned, Anderson told her “don't tell your mom. I won't do it again. I promise.” Transcript Vol. 3 at 171.

[5] After that first incident, Anderson continued to sexually abuse K.S. weekly and sometimes multiple times a week. K.S. testified that Anderson inserted his fingers into her vagina on many occasions, which hurt, and that he often placed his mouth on her chest and her vagina. K.S. also described an incident when Anderson placed his penis between her legs and tried to “rape” or “impregnate” her. Id. at 173. The incidents occurred in her bedroom or the living room when no one else was around. Anderson continued to tell K.S. “not to tell anybody” and even threatened that if she did, they would lose the house because he would lose his job. Id. at 178.

[6] Anderson also sexually abused M.S. M.S. testified that he grabbed her butt with his hands, touched her vagina with his fingers, and inserted his fingers into her vagina, hurting her, and that he did these things on numerous occasions. Anderson also placed his mouth on her vagina and inserted his penis into her mouth on several occasions. Anderson would sometimes show M.S. pornography on his phone. On more than one occasion, Anderson inserted his penis into M.S.’s vagina. M.S. testified that the sexual abuse occurred in her bedroom, the living room, or her “mom's room.” Id. at 205. Anderson repeatedly told M.S. “not to tell mom.” Id. at 209.

[7] On August 28, 2024, K.S. decided to tell a friend at school about what was happening at home. K.S. knew her friend's father was a police officer, and she hoped her friend would tell him. That evening, a Department of Child Services caseworker and two police officers arrived at the house. While they were outside talking to Mother, Anderson told K.S. to tell them “it's a lie” and that she “just made it up.” Id. at 178. He also told her that “he would kill himself if he ever even thought of doing it again.” Id.

[8] K.S. and M.S. each gave a forensic interview and described the sexual abuse perpetrated by Anderson. On October 7, 2024, the State charged Anderson with six counts of child molesting as Level 1 felonies and two counts of child molesting as Level 4 felonies. Each count alleged that the crimes occurred “between the dates of October 1, 2021, and August 28, 2024.” Appellant's Appendix Vol. II at 19-21. Four counts identified K.S. as the victim and four counts identified M.S. as the victim.

[9] A three-day jury trial began on May 27, 2025. After the jury was selected, the trial court designated two alternate jurors and told the parties that “they are not to be announced as alternate jurors until the Court does so in the reading of final instructions.” Transcript Vol. 3 at 31. In the final instructions, the trial court identified the jurors who had been assigned as alternates. The court instructed the alternates, “Your duties are the same as those of the regular jurors, except you must not participate in the deliberations or voting of the jury unless I direct you to do so.” Transcript Vol. 4 at 86. At approximately 8:00 p.m. on the third day of trial, after the jury had been deliberating for about seven hours, the jury foreperson informed the court that two members of the jury had medical issues that required them to obtain medication from their homes.² The trial court stated that “the general rule in a criminal case during jury deliberations is the jury may not separate until there is a verdict.” Id. at 88. The court acknowledged that the foreperson had raised “compelling interests” that needed to be addressed and stated that it would ensure that “anyone who needs medication, obviously, gets that medication.” Id. The court, the State, and defense counsel then exited the courtroom and had a discussion in chambers off the record.

[10] When the court and the parties returned to the courtroom, the trial court instructed the foreperson to ask the jurors who needed medication if someone could bring that medication to them at the courthouse. The court then recessed. When the jury was brought back in, the court, noting this was an issue of first impression for it, stated:

Based on the information I've been provided; it is my decision now that what I'm going to do is utilize the alternates that we have. We have alternates for a reason, and that's, we never know exactly if we will need them or not need them, but there are times when it becomes necessary, and I think this is one such occasion, because Juror 1013 and Juror 969 are in a situation where they need medication that cannot get delivered. I think that's a compelling reason to excuse each of those jurors at this time. And then I will take juror[ ] 931 and juror 1527, and you are each restored to the position of full juror and shall begin deliberations with your fellow jurors at this time. For the three remaining jurors who need some things delivered. 881, 855, 1003, I'm going to have my Bailiff meet with you here in the jury room, and she's going to put the wheels in motion to get things here.

Id. at 90-91. The court then addressed the parties:

The Court: Anything from counsel, [State]?

The State: No, thank you, Judge.

The Court: [Defense Counsel]?

Defense Counsel: No, thank you, your Honor

The Court: All right, very good. We'll be in recess.

Id.

[11] The jury returned its verdict finding Anderson guilty of all charges except for a single Level 1 felony offense. On June 25, 2025, the trial court sentenced Anderson to forty years on each Level 1 felony and ten years on each Level 4 felony. The court ordered the sentences for the offenses against K.S. to be served concurrently and the sentences for the offenses against M.S. to be served concurrently, resulting in forty-year sentences for each set of offenses. To account for separate victims, the trial court ordered the two sets of concurrent sentences to be served consecutively to each other, for a total aggregate sentence of eighty years. Anderson now appeals. Additional facts will be provided as necessary.

Discussion & Decision

1. Propensity Evidence

[12] Anderson argues that reversible error occurred when the State offered what he claims was improper character evidence. Specifically, he claims that the State charged him with four distinct offenses against each victim and that to obtain convictions on each offense, the State offered propensity evidence prohibited by Evid. R. 404(b) by eliciting testimony from each victim that the charged acts “occurred on multiple occasions, not just once.” Appellant's Brief at 19. Anderson's argument fails for several reasons.

[13] First, Anderson omits from his brief that he did not preserve his argument against the admission of this evidence by making a timely and specific objection in the trial court. Since he waived his argument by not objecting at trial, he may only proceed on a claim of fundamental error. Curtis v. State, 948 N.E.2d 1143, 1148 (Ind. 2011) (stating that an issue that is waived because it was not preserved at trial through a timely objection may only be reviewed for fundamental error). Anderson, however, does not argue that fundamental error occurred. We therefore agree with the State that Anderson has wholly waived this issue for our review. See Kyle v. State, 54 N.E.3d 439, 443 (Ind. Ct. App. 2016) (“A trial counsel's failure to object to the admission of evidence waives an error for appellate review.”); Applegate v. State, 230 N.E.3d 944, 952 (Ind. Ct. App. 2024) (finding wavier of fundamental error argument when not presented in opening brief), trans. denied.

[14] Waiver notwithstanding, the evidence about which Anderson complains does not run afoul of Evid. R. 404(b)’s prohibition against propensity evidence. Here, the challenged evidence was the testimony of the two child victims about the crimes that the State charged Anderson with committing between October 1, 2021, and August 28, 2024. Evidence of the charged offenses does not implicate Evid. R. 404(b) at all because it is not evidence of an “other” act; it is evidence of the act in question. See Marshall v. State, 893 N.E.2d 1170, 1175-76 (Ind. Ct. App. 2008) (holding that testimony that the defendant molested a victim within the charged time period of the offense was direct evidence of the crime charged so Evid. R. 404(b) did not apply), summarily aff'd in relevant part by Garner v. State, 777 N.E.2d 721, 723 n.4 (Ind. 2002).

2. Discharge of Jurors

[15] Anderson argues that the trial court committed “structural error by removing two deliberating jurors without developing a record and without precautionary safeguards.”³ Appellant's Brief at 20. He argues on appeal that the court should have conducted voir dire of the dismissed jurors to determine their competency and capacity to continue and considered other alternatives such as an overnight adjournment. He maintains that the wholesale substitution of two jurors after extensive deliberations had begun compromised the integrity of the deliberative process.

[16] Our Supreme Court has stated:

Trial courts have broad discretion in deciding whether to remove and replace a juror before deliberations have begun and, in such circumstances, we reverse only for an abuse of discretion. Riggs [v. State], 809 N.E.2d [322,] 327 [(Ind. 2004)]. A trial court's decision to remove and replace a juror after commencement of deliberations likewise requires a deferential standard of review; however, the decision at that point “raises a number of considerations” implicating the defendant's right to an impartial jury and a unanimous verdict. Id. Under these circumstances, we apply a heightened standard of review, reversing for an abuse of discretion resulting in the denial of a fair trial. An abuse of discretion in this context arises when the trial court's decision is “clearly against the logic and effect of the facts and circumstances before the court or it misinterprets the law,” Carpenter v. State, 786 N.E.2d 696, 703 (Ind. 2003), or if the decision “was so prejudicial to the rights of the defendant that a fair trial was impossible,” Boatright v. State, 759 N.E.2d 1038, 1042 (Ind. 2001).

Durden, 99 N.E.3d at 650.

[17] A trial court is justified in discharging a juror “only in the most extreme situations where it can be shown that removal of the juror is necessary for the integrity of the process, does not prejudice the deliberations of the rest of the panel, and does not impair the part[y's] right to a trial by jury.” Riggs, 809 N.E.2d at 327-28. The removal of a juror requires “a carefully developed record as to the grounds for removal and also requires precautions to avoid inappropriate consequences from the removal.” Id. at 327. This is so because “[u]njustified removal is structural error” much like the denial of the right to an impartial jury. Id. at 328 (quoting Gray v. Mississippi, 481 U.S. 648, 668 (1987)).

[18] “For a party to preserve a claim for review, we generally require that party to object to the trial court's ruling and to state the reasons for that objection.” Bradley v. State, 248 N.E.3d 563, 573 (Ind. 2024) (citing Durden, 99 N.E.3d at 651). Additionally, “to ‘properly preserve an issue for appellate review,’ ․ a defendant ‘must state with reasonable specificity the grounds for his objection while before the trial court.’ ” Id. (quoting Todisco v. State, 965 N.E.2d 753, 756 (Ind. Ct. App. 2012)).

[19] Here, Anderson did not object to the court's dismissal of the two jurors after deliberations had begun. First, we note that there is no record of the discussion that occurred in chambers between the trial court, defense counsel, and the State, but it seems that a consensus was reached as to the manner in which the situation would be addressed. Indeed, the trial court provided the jury foreperson with specific instructions for inquiring about the needs of the jurors. The record indicates that such information was then reported to the court. The court made clear on the record that two jurors had compelling medical needs that could not be handled in a timely fashion and noted that three jurors had certain unidentified needs, which the court took action to fulfill. After the trial court made the decision to replace two of the jurors with the alternates, Anderson did not object, but rather affirmatively indicated that he had nothing further to address.

[20] Under these circumstances, we find that Anderson has waived his argument that the trial court failed to make an adequate record of the reasons for removal of two jurors after deliberations had begun or that the precautionary safeguards employed were inadequate. See LeFlore v. State, 823 N.E.2d 1205, 1210 (Ind. Ct. App. 2005) (finding the appellant waived his argument that the trial court failed to make an adequate record when removing a juror during deliberation because defense counsel made a different objection at trial), trans. denied; cf. Durden, 99 N.E.3d at 655-56 (finding invited error when defense counsel affirmatively agreed to replacing a juror during deliberation).

3. Inappropriate Sentence

[21] The Indiana Constitution authorizes independent appellate review and revision of sentences imposed by a trial court. Lane v. State, 232 N.E.3d 119, 122 (Ind. 2024) (citing Ind. Const. art. 7, §§ 4, 6). This authority, as implemented through Ind. Appellate Rule 7(B) enables this court to “revise a sentence authorized by statute if, after due consideration of the trial court's decision, the court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” Deference to the trial court's sentence should prevail unless “overcome by compelling evidence portraying in a positive light the nature of the offense and the defendant's character.” Oberhansley v. State, 208 N.E.3d 1261, 1267 (Ind. 2023). It is the defendant's burden on appeal to persuade us that the sentence imposed by the trial court is inappropriate. Konkle v. State, 253 N.E.3d 1068, 1093 (Ind. 2025).

[22] In determining whether a sentence is inappropriate, we are not limited to the aggravating and mitigating circumstances found by the trial court. Oberhansley, 208 N.E.3d at 1271. Ultimately, we rely on our collective judgment as to the balance of all the relevant considerations involved, which include the culpability of the defendant, the severity of the crime, the damage done to others, “and myriad other factors that come to light in a given case.” Lane, 232 N.E.3d at 122.

[23] When evaluating the nature of an offense, we “look at the extent, brutality, and heinousness of the offense.” Borroel v. State, 241 N.E.3d 8, 18 (Ind. Ct. App. 2024), trans. denied. Given that sentencing “is principally a discretionary function in which the trial court's judgment should receive considerable deference, a trial court's sentencing decision will generally prevail unless overcome by compelling evidence portraying in a positive light the nature of the offense.” Konkle, 253 N.E.3d at 1093. In determining whether Anderson carried his burden of establishing that his sentence is inappropriate, we consider “whether there is anything more or less egregious about the offense committed by the defendant that makes it different from the typical offense accounted for by the legislature when it set the advisory sentence.” T.A.D.W. v. State, 51 N.E.3d 1205, 1211 (Ind. Ct. App. 2016).

[24] We begin with the advisory sentence as “the starting point the Legislature has selected as an appropriate sentence for the crime committed.” Anglemeyer v. State, 868 N.E.2d 482, 494 (Ind. 2007), clarified on reh'g, 875 N.E.2d 218. Here, Anderson was convicted of five Level 1 felonies and two Level 4 felonies. The sentencing range for a Level 1 felony child molesting offense is twenty to fifty years with an advisory sentence of thirty years. Ind. Code § 35-50-2-4(c). The sentencing range for a Level 4 felony is two to twelve years with an advisory sentence of six years. I.C. § 35-50-2-5.5. Anderson received ten years less than the maximum sentence for each Level 1 felony and an elevated sentence for each Level 4 felony. The trial court grouped the offenses by the identified victim and ordered that the sentences for the offenses against each victim run concurrently, resulting in an aggregate sentence of forty years for each grouping. The court then ordered those sentences to be served consecutively, for a total aggregate sentence of eighty years.

[25] K.S. and M.S. reported that Anderson began sexually abusing them shortly after he moved into their home. At that time, K.S. was nine years old and M.S. was six years old. Anderson soon became their stepfather, and they were often left in his care. The sexual abuse perpetrated by Anderson continued for nearly three years. Anderson told his victims not to disclose what was happening and even threatened that they would lose their house if anyone found out because he would lose his job. In her victim-impact statement, K.S. stated she was self-harming herself, having suicidal thoughts, and cried a lot. We find the nature of the offenses to be more egregious than that contemplated by the Legislature when it set the advisory sentence. Anderson has not convinced us that the nature of the offenses is deserving of a lesser sentence.

[26] In assessing Anderson's character, we engage in “a broad consideration of a defendant's qualities, including the defendant's age, criminal history, background, past rehabilitative efforts, and remorse.” Dean v. State, 222 N.E.3d 976, 990-91 (Ind. Ct. App. 2023), trans. denied. As found by the trial court, Anderson is thirty years of age and has no significant criminal history. On the flip side, Anderson was in a position of trust as the stepfather to K.S. and M.S. He started sexually abusing them when they were nine and six years old, respectively, and the abuse continued, without restraint for nearly three years. And, as noted by the trial court, while he maintained his innocence, Anderson expressed “absolutely zero remorse for what has happened.” Transcript Vol. 4 at 110. Anderson's character is not deserving of a lesser sentenced.

[27] The sentence imposed by the trial court is not inappropriate.

[28] Judgment affirmed.

FOOTNOTES

1.   Mother and Anderson have two children together.

2.   One of the jurors was diabetic and had high blood pressure. This juror was called before the court and explained their medical issues and medications that were needed.

3.   Structural error is defined as “ ‘a limited class of fundamental constitutional errors that defy analysis by harmless error standards,’ thus requiring automatic reversal without the need to show prejudice.” Durden v. State, 99 N.E.3d 645, 653 (Ind. 2018) (quoting Neder v. United States, 527 U.S. 1, 7 (1999)).

Altice, Judge.

May, J. and Foley, J., concur.