Kieth Klaiber, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

Case Summary

[1] Following a jury trial, Kieth Klaiber was convicted of seven counts of Level 1 felony child molesting and six counts of Level 4 felony child molesting against two victims. Klaiber presents four issues for review, which we consolidate and restate as:

1. Was the charging information impermissibly vague?

2. Did the trial court abuse its discretion by excluding evidence that the victims’ mother (Mother) had been a victim of child molesting and by admitting a portion of the recording of Child Victim 1's forensic interview?

3. Is the evidence sufficient to support the Level 1 felony convictions in which Child Victim 1 was the identified victim?

[2] We affirm.

Facts & Procedural History

[3] Klaiber and Mother were involved in a romantic relationship for nearly eight years. In late August/early September 2017, Klaiber moved in with Mother and her daughters, Child Victim 1 and Child Victim 2, then ages five and six, respectively. Mother worked the closing shift at a local gas station that often required her to be at work when the girls returned home from school, later at night around bedtime, or while the girls were sleeping. Klaiber provided care for the girls during these times and acted as a father figure. As early as 2022, when Child Victim 1 was ten years old, Klaiber began touching her in ways that made her feel “uncomfortable.” Transcript 3, Vol. IV at 85.

[4] On the night of September 20, 2024, Mother and the girls were watching a movie in Mother's bedroom. Mother fell asleep, and the girls went to their rooms. Child Victim 1 was playing a game on her phone when Klaiber came into her room and started talking to her. Klaiber then grabbed her hand with a firm grip, pulled her hand to his exposed penis, and forced her to masturbate him. Child Victim 1 tried to pull away, but he put his hand behind her head and pulled her head to his penis and “forced [her] to suck his stick.”¹ Id. at 69. After Klaiber let go of Child Victim 1's head, Child Victim 1 looked up and saw Mother, who looked to be “in shock,”² standing in the doorway to her room. Id. at 71. As Mother walked farther into the room, Klaiber and Child Victim 1 separated. Mother observed Klaiber tuck his penis back into his pants and Child Victim 1 cover her face. Mother asked what was happening, and Klaiber explained that they were “blowing raspberries.” Transcript 2, Vol. III at 16. As Mother challenged Klaiber's explanation, Klaiber tried to usher her out of the room. Instead, Mother made Klaiber leave the room and then she asked Child Victim 1, “Did, did I see what I think I saw?” to which Child Victim 1 responded, “yes, mommy.” Id. at 18.

[5] Mother took Child Victim 1 and Child Victim 2, who had been awakened by the commotion, to her bedroom. Mother then confronted Klaiber and told him to pack his things and leave the house. Klaiber continued to deny that anything inappropriate had occurred and told her she was “blowing things out of proportion.” Id. at 23. As Mother continued to pressure Klaiber for answers, he eventually told her that he “ha[d] been trying to figure out for a month how to tell [her]” and explained that he “didn't want to hurt [her].” Id. at 24. When Klaiber suggested that such things had been occurring for only a month, Child Victim 1 yelled from the other room, “that's a lie” and that it had been happening for “[a]t least two summers.” Id. at 25, 70. Mother asked Klaiber how he went “from being a daddy to being a predator,” and Klaiber responded that “it was nice to finally get some attention.” Id. at 27.

[6] Mother immediately called her brother and the girls’ father. When Mother's brother arrived, she told him what had occurred and he called the police. Once the police arrived, Mother told them what she had observed. Mother and her brother transported the girls to a hospital for Child Victim 1 to undergo a sexual-assault examination. After the examination was complete, the girls were taken to Susie's Place where they each participated in a forensic interview.

[7] On September 23, 2024, the State charged Klaiber with attempted child molesting as a Level 1 felony, six counts of child molesting as Level 1 felonies, and six counts of child molesting as Level 4 felonies.³ On April 3, 2025, Klaiber filed a motion in limine indicating that he intended to introduce evidence that Mother had been molested by her father as a child. The trial court held a hearing on the matter on April 8, 2025. Klaiber argued that Mother's history of sexual abuse was necessary to impeach her because she had made conflicting statements about what she witnessed between Klaiber and Child Victim 1 when she walked into Child Victim 1's room on that September night. Asserting that eyewitness accounts can be unreliable, Klaiber argued that Mother's history of abuse could have influenced her perception of what she saw. Klaiber also argued that Child Victim 2's statements may have been influenced by knowledge of Mother's past abuse. The State responded that Klaiber's basis for admission of such evidence did not meet any of the exceptions to Ind. Evidence Rule 412, that Klaiber had other ways to impeach Mother regarding her eyewitness account, and that there was no evidence that Child Victim 1 or Child Victim 2 knew of Mother's history of being abused. The court denied Klaiber's motion in limine.

[8] A four-day jury trial commenced on April 14, 2025. During Mother's testimony, Klaiber renewed his motion to admit evidence that Mother was sexually abused as a child. Again, Klaiber argued that Mother's past abuse was admissible to impeach her perceptions of what she witnessed between him and Child Victim 1 and to undermine her credibility. After the trial court denied Klaiber's motion, he made an offer of proof that Mother would have testified that she was molested by her father, and that she told the girls after their forensic interviews that she had been through a “similar situation.” Id. at 45.

[9] At trial, the nurse who conducted the sexual assault examination at the hospital testified that Child Victim 1 disclosed to her that Klaiber had been forcing her to perform oral sex on him weekly or several times a week for four years. She told the nurse that after she completed her chores, Klaiber would tell her to go to her room because “he wanted her to suck the plug,” which Child Victim 1 clarified as being the male part of the body. Id. at 113. Child Victim 1 told her that she complied because Klaiber threatened to have anal intercourse with her if she refused.

[10] During direct examination, Child Victim 1, who was currently thirteen and in the seventh grade, testified that it was around Christmas break of fourth grade when Klaiber first forced her to “suck on his stick.” Transcript 3, Vol. IV at 83. She testified that Klaiber would leave her room after he “came.” Id. at 84.

[11] When Child Victim 1 indicated that she could not remember how many times Klaiber forced her to perform oral sex or provide details of specific instances, the State sought to refresh Child Victim 1's recollection with a portion of the video of her forensic interview. Klaiber objected, arguing that the State was not permitted to impeach its own witness. The State responded that aside from the fact that it is permitted to impeach its own witness, what the State was seeking to do was refresh Child Victim 1's recollection after she testified that she did not remember the other times Klaiber put his penis in her mouth. The trial court overruled Klaiber's objection and permitted the State to refresh Child Victim 1's recollection by playing for her a portion of her interview outside the presence of the jury.

[12] After having her recollection refreshed, Child Victim 1 testified that she still did not recall the details or how many other times that Klaiber forced her to perform oral sex. Child Victim 1 testified that she had a better memory of events at the time of her interview and that she told the truth during the interview. The State moved to publish for the jury as a recorded recollection that portion of the interview that Child Victim 1 was permitted to review. Klaiber objected but the trial court overruled his objection. In the video played for the jury, Child Victim 1 described a time around the end of fifth grade when Klaiber pulled her into Mother's bedroom, pushed her onto the bed, held her down, and forced his penis into her mouth until he “release[d] his liquid out from his penis.” Forensic Interview at 7:51. Child Victim 1 explained that the liquid that came out of Klaiber's penis was white and that Klaiber was “groaning and moaning, trying to get it out.” Id. at 8:43-47. She also stated during the recorded interview that Klaiber had been forcing her to perform oral sex on him for three years.

[13] During Child Victim 2's testimony, Klaiber again renewed his motion to admit evidence that Mother was sexually abused as a child. He made an offer of proof that Child Victim 2 would have testified that she was aware of Mother's history of abuse and that Mother had disclosed such to her in March 2025.

At the conclusion of the evidence, the jury found Klaiber guilty as charged. The trial court sentenced Klaiber to an aggregate term of 245 years imprisonment. Klaiber now appeals. Additional evidence will be presented as necessary.

Discussion & Decision

1. Charging Information

[14] Klaiber argues that the charging information was impermissibly vague in that it required him to defend against thirteen charges that were alleged to have occurred over the course of thirty-three months of his life. He maintains that the vague date ranges set out for each offense made it impossible for him to present a complete defense. He suggests that he “may very well have had viable alibi defenses ․ if he knew the dates and times of the acts he was accused of.” Appellant's Brief at 26.

[15] A challenge to the sufficiency of a charging information must be raised in a pretrial motion to dismiss, and the failure to do so waives that issue for appeal. Cabrera v. State, 178 N.E.3d 344, 345-46 (Ind. Ct. App. 2021) (citing Neff v. State, 915 N.E.2d 1026, 1030-1 (Ind. Ct. App. 2009), superseded by statute on other grounds); Buzzard v. State, 712 N.E.2d 547, 551 (Ind. Ct. App. 1999). As Klaiber concedes, he did not file a motion to dismiss or otherwise raise any objection to the sufficiency of the charging information in the trial court. He has therefore waived this claim. In an attempt to avoid waiver, Klaiber argues that the alleged error constitutes fundamental error. We find this argument unavailing.

[16] The fundamental error exception to our waiver rule is extremely narrow and applies only when the error constitutes a blatant denial of basic due process principles and makes it impossible to receive a fair trial. Ryan v. State, 9 N.E,3d 663, 668 (Ind. 2014), abrogated on other grounds. Fundamental error is meant to permit appellate courts a means to correct the most egregious and blatant trial errors that otherwise would have been procedurally barred, not to provide a second bite at the apple for defense counsel who ignorantly, carelessly, or strategically fail to preserve an error. Id.

[17] No fundamental error occurred here. First, we note that Klaiber's argument is misleading in that he improperly aggregates the entire time period covered by all the charged crimes. The statutory requirements for a charging information apply to each offense charged in the singular, not to all the offenses charged in their plurality. See Ind. Code § 35-34-1-2(a)(5).

[18] Further, aside from Count 1, which alleged a specific date, the charging information for each of the twelve remaining charges alleged the year in which the offense occurred, i.e., 2022, 2023, or 2024. This is as specific as the law requires especially in child molesting cases where time is not of the essence. Cabrera, 178 N.E.3d at 346; Gaby v. State, 949 N.E.2d 870, 876 (Ind. Ct. App. 2011); Vail v. State, 536 N.E.2d 302, 302-03 (Ind. Ct. App. 1989) (holding that charging information for child molesting that alleged only year of offense and county where it occurred stated offense with sufficient certainty). We have long noted the peculiar problems attending child molesting cases and youthful witnesses and the necessity of permitting such offenses to be alleged generally in terms of time and place. Vail, 536 N.E.2d at 303.

[19] Contrary to Klaiber's argument, a defendant who commits many crimes over the course of several years before being caught does not escape all criminal liability simply by virtue of the aggregate period encompassed by all his charged crimes. The evidence showed that Klaiber perpetrated sex acts against Child Victim 1 repeatedly over the course of several years. Unsurprisingly, Child Victim 1 was unable to pinpoint exact dates of the repeated and continuous sexual abuse she suffered at the hands of Klaiber when she was in fourth through seventh grades. We find no error, let alone fundamental error in the charging information.

2. Admission of Evidence

[20] A trial court has discretion regarding the admission or exclusion of evidence, and its decisions are reviewed only for abuse of discretion. Hall v. State, 177 N.E.3d 1183 (Ind. 2021). We may not reverse unless the trial court's decision was “clearly against the logic and effect of the facts and circumstances before it and errors affect a party's substantial rights.” Id.

A. Exclusion of Evidence of Prior History of Sexual Abuse

[21] Klaiber argues that the trial court abused its discretion by excluding evidence that Mother was sexually abused by her father when she was a child. Specifically, he argues that he “had a fundamental due process right to present such evidence” so he could demonstrate that Mother “jumped to the conclusion that he was molesting Child Victim 1 based, at least in part, on her own prior experiences.” Appellant's Brief at 22. He also argues that Child Victim 1's answers to questions about what Klaiber had done to her were “impacted by and clouded by [her] knowledge that [Mother] had suffered similar sexual abuse.” Id.

[22] Generally, evidence of a witness's prior sexual conduct is not admissible. Ind. Evidence Rule 412(a). In a criminal case, the trial court may admit “evidence of specific instances of a victim's or witness's sexual behavior, if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence;” “evidence of specific instances of a victim's or witness's sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor;” or “evidence whose exclusion would violate the defendant's constitutional rights.” Evid. R. 412(b)(1).

[23] Klaiber's arguments fall under the third exception to Evid. R. 412 in that he argues that exclusion of such evidence violated his right to confront Mother, Child Victim 1, and Child Victim 2 with evidence that the jury could have found relevant to its assessment of their credibility. In a similar vein, he also argues that exclusion violated his right to present a complete defense.

[24] We conclude that Klaiber's right to present a defense was not abridged and the trial court's application of Evid. R. 412 was not erroneous because Klaiber could impeach Mother by pointing out her alleged conflicting statements about what she witnessed between Klaiber and Child Victim 1 on that September night. The trial court did not abuse its discretion by excluding evidence that Mother was sexually abused by her father.

[25] Furthermore, there is nothing in the record that suggests girls knew the details of Mother's abuse. Mother testified at her deposition that she did not tell either child about how she was sexually abused by her father. During the offer of proof, Mother testified that she told the girls that she had been through a similar situation and only after their forensic interviews. Similarly, Child Victim 2 testified that Mother had disclosed her abuse to Child Victim 2 in March 2025. Therefore, Mother's childhood abuse was not relevant to undermine Child Victim 2's disclosures because Child Victim 2's disclosures were made prior to that time. See Evid. R. 401 (Evidence is relevant when it tends to make more probable or less probable the existence of some fact pertinent to the case). Excluding Mother's childhood abuse did not prevent Klaiber from presenting a defense. The trial court did not abuse its discretion in this regard.

B. Admission of Recorded Recollection

[26] Klaiber argues that the trial court abused its discretion by admitting a portion of Child Victim 1's forensic interview, claiming that such amounted to improper hearsay. Child Victim 1's statements during the forensic interview were hearsay, which is defined as “a statement that: (1) is not made by the declarant while testifying at the trial or hearing; and (2) is offered in evidence to prove the truth of the matter asserted.” Ind. Evidence Rule 801(c). Hearsay is generally inadmissible. Evid. R. 802. However, Evidence Rules 803 and 804 set forth numerous exceptions.

[27] Here, the trial court admitted a portion of Child Victim 1's interview under the “recorded recollection” exception—Evid. R. 803(5). That rule allows the admission of “[a] record that: (A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately; (B) was made or adopted by the witness when the matter was fresh in the witness's memory; and (C) accurately reflects the witness's knowledge.” Id.

[28] Klaiber argues that Child Victim 1's forensic interview does not get past the first element for the recorded recollection exception. On direct examination, the State asked Child Victim 1, aside from what occurred on the night of September 20, “Were there any other times that [Klaiber's] stick has touched the inside of your mouth?” Transcript 3, Vol. IV at 90. Child Victim 1 responded, “I do not remember.” Id. A short time later, the State again questioned Child Victim 1, “You testified here a little bit earlier that you don't remember any other times that [Klaiber] has put his pencil into your mouth, is that right?” to which Child Victim 1 did not give an audible answer. Id. at 95. The State then asked Child Victim 1 if she remembered participating in the forensic interview and she responded in the affirmative. Child Victim 1 believed that if she could review a portion of the recorded interview, that such could help refresh her recollection. She also stated that during the forensic interview, she was telling the truth about what Klaiber had done to her. Over Klaiber's objection, the State was permitted to then play that portion of Child Victim 1's interview for the jury as a recorded recollection.

[29] Klaiber argues that Child Victim 1 never indicated that she could not recall the matter enough to testify fully and accurately. Rather, he asserts that her response when asked if there were other instances when Klaiber put his penis in her mouth was tantamount to a denial that no other such incidents occurred and not an inability to recall the details. He maintains that her answer was unequivocal in this respect. We disagree.

[30] The trial court was in the best position to assess Child Victim 1's response in this regard, and its interpretation that her testimony was that she could not remember fully and accurately as opposed to a denial that other similar incidents had occurred was reasonable. Moreover, the trial court's interpretation was supported by Child Victim 1's later testimony on cross-examination:

Q Yeah. Okay. The only time [Klaiber] has his, the only time that you remember [Klaiber] has his penis in your mouth was on September 21st, when your mom walked in, is that right?

[Child Victim 1] Yes.

Q Okay. And when you say I don't remember, it's, is that, I don't remember any other times, are you saying there were no other times?

[Child Victim 1] There were some other times, but it was so many that I do not remember which one I, which one it was.

Q Okay. So, you don't remember the details?

[Child Victim 1] Yeah.

Id. at 125. In other words, Klaiber forced Child Victim 1 to perform oral sex on him so many times that she could not differentiate between incidents resulting in an inability to fully and accurately testify about them at trial.

[31] Klaiber also argues that Child Victim 1 did not vouch for the accuracy of the statements she made during the forensic interview. Again, we disagree. Although the State immediately passed the witness to the defense after the video of the interview was played, Klaiber ignores that, prior to playing the video, the State asked and Child Victim 1 responded that she had a better memory of the incidents at the time of the interview and that she was the telling the truth when interviewed. This satisfies the pertinent inquiry of whether the event was “fresh in the witness's memory” at the time the previous statement was made. Evid. R. 803(5)(B); see also Gorby v. State, 152 N.E.3d 649, 653 (Ind. Ct. App. 2020) (affirming admission of molest victim's forensic interview under this prong because the witness testified that she told the interviewer the truth). Moreover, during the interview, Child Victim 1 included details of the abuse she suffered at the hands of Klaiber. See Griffith v. State, 259 N.E.3d 1025, 1038 (Ind. Ct. App. 2025) (finding that including details in the description of the molestation during a forensic interview indicates it was fresh in the victim's mind at that time). The trial court did not abuse its discretion in admitting a portion of Child Victim 1's forensic interview as a recorded recollection.

3. Sufficiency of the Evidence

[32] Klaiber argues that the evidence presented at trial was insufficient to support his convictions for Level 1 felony child molesting committed against Child Victim 1 (Counts 1, 2, 6, and 10). When reviewing a challenge to the sufficiency of the evidence, we neither reweigh the evidence nor reassess the credibility of the witnesses. Hall, 177 N.E.3d at 1191. Rather, we consider the evidence most favorable to the verdict and any reasonable inferences that can be drawn therefrom. Willis v. State, 27 N.E.3d 1065, 1066 (Ind. 2015). We will affirm the conviction unless no reasonable factfinder could find the elements of the crime proven beyond a reasonable doubt. New v. State, 135 N.E.3d 619, 624 (Ind. Ct. App. 2019). We further note that the evidence need not exclude every reasonable hypothesis of innocence, but instead, “the evidence is sufficient if an inference may reasonably be drawn from it to support the verdict.” Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007).

[33] To convict Klaiber of attempted child molesting (Count 1), the State had to prove that, on or about September 21, 2024, he engaged in conduct that constituted a substantial step toward the commission of child molesting by other sexual conduct ⁴ against Child Victim 1. Here, both Child Victim 1 and Mother testified that on that date, Klaiber forced Child Victim 1 to perform oral sex. It is irrelevant for the charge of attempt that Klaiber completed the act of molesting Child Victim 1. A person “attempts to commit a crime when, acting with the culpability required for commission of the crime, the person engages in conduct that constitutes a substantial step toward commission of the crime.” Ind. Code § 35-41-5-1(a). Clearly, conduct that results in commission of a completed crime satisfies the requirement that such conduct constitutes a substantial step toward completion of the crime. The evidence is sufficient to support this conviction for attempted child molesting under Count 1.

[34] Under Count 2, Klaiber was convicted of child molesting by other sexual conduct in 2024. Klaiber argues that the State failed to present evidence that aside from the incident on September 21, that he engaged in other sexual conduct with Child Victim 1 during 2024. We disagree. The nurse who examined Child Victim 1 testified that Child stated Klaiber had been forcing her to perform oral sex weekly, if not several times a week, for several years. Child Victim 1 also testified that the Klaiber had been forcing her to perform oral sex for several years. Considering this evidence, the jury could have reasonably inferred that Klaiber had forced Child Victim 1 to perform oral sex on some date in 2024 other than September 21. The evidence is sufficient to support Klaiber's conviction for Level 1 felony child molesting in 2024. Thus, we reject Klaiber's argument that he was convicted of both a completed crime and an attempt of the same crime based solely on his conduct on September 21, 2024.

[35] Klaiber also argues that there is insufficient evidence to support his convictions under Counts 6 and 10. To sustain the convictions under these counts, the State was required to prove that Klaiber knowingly engaged in other sexual activity with Child Victim 1 in 2022 (Count 6) and 2023 (Count 10).

[36] As we have already noted, during her forensic interview in September 2024, Child Victim 1 described the first time Klaiber forced her to perform oral sex and stated that he had been forcing her perform oral sex on him weekly for four years, which timeframe encompasses 2022 and 2023. During her trial testimony, Child Victim 1 testified that Klaiber first forced her to perform oral sex during the holiday break when she was in fourth grade, which would have been 2021-2022. During her forensic interview, which we have determined was properly played for the jury as a recorded recollection, Child Victim 1 described an incident when Klaiber forced her to perform oral sex while she was in fifth grade, which would have been 2022-2023. Further, Child Victim 1 testified that Klaiber forced her to perform oral sex so many times it was difficult to differentiate each incident. It is irrelevant that Child was unable to pinpoint exact dates or detail each incident of molesting that occurred. Indeed, we have acknowledged that “[i]t is difficult for children to remember specific dates, particularly when the incident is not immediately reported as is often the situation in child molesting cases. The exact date becomes important only in limited circumstances, including the case where the victim's age at the time of the offense falls at or near the dividing line between classes of felonies.” Barger v. State, 587 N.E.2d 1304, 1307 (Ind. 1992). Those circumstances are not applicable here. Having reviewed the evidence presented, the jury could reasonably conclude that Klaiber committed Level 1 felony child molesting against Child Victim 1 in 2022 and 2023.

[37] Judgment affirmed.

FOOTNOTES

1.   Child Victim 1 referred to Klaiber's penis as a “pencil” or “stick.” Id. at 66.

2.   Child Victim 1 described that Mother's eyebrows looked like she was “angry” and her mouth was “completely” open. Id. at 72.

3.   Aside from Count 1, which alleged a specific instance on a specific date, the State charged Klaiber with three counts of Level 1 felony child molesting against each Child Victim with each alleged offense occurring during the span of one year, namely, 2022, 2023, and 2024. The State did the same with respect to the Level 4 felony offenses.

4.   “[O]ther sexual conduct” means an act involving “a sex organ of one (1) person and the mouth or anus of another person.” Ind. Code § 35-31.5-2-221.5.

Altice, Judge.

Brown, J. and DeBoer, J., concur.