Robert Lee Laird v. State of Indiana

On December 25, 2015, twelve-year-old C.L. went to spend the latter part of

Christmas Day with his father, having spent the earlier part of the holiday with

his mother. Laird is C.L.’s uncle, the twin brother of C.L.’s father, and was also

at C.L.’s father’s house that evening. C.L. had received a new iPad as a gift that

day and sat on the couch close to his uncle Laird while they both played a game

on the iPad. As they sat on the couch, Laird rubbed his pinky finger on C.L.’s

penis over his clothing. C.L. initially thought Laird had done this accidentally,

but when Laird kept touching him, he knew that it was improper. C.L. told his

older sister about the incident but did not tell his father at that time.

[4] Later that evening, Laird invited C.L. to sleep in a twin bed with him. When

C.L. lay down with his uncle, Laird put his arms around the boy and slowly

moved his hands down until he touched C.L.’s penis over his clothes. C.L.

repositioned himself to get away from Laird’s hand. Laird then took C.L.’s

hand and placed it under his clothes and on his penis. C.L. stated that he

needed to get a drink of water and got up and left the bed. But instead of getting

a drink, he again told his older sister, who told him that they needed to tell their

father about what had happened. C.L. told his father, who then ordered his

brother to leave the house. C.L. also sent a text message to his mother, telling

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her that she needed to contact him. C.L.’s mother eventually came and got her

son and took him back to her home. C.L.’s parents called the police to report

the incident.

[5] During the course of the investigation, the police interviewed Laird twice. At

the first interview, Laird claimed that C.L. was not innocent, stating that the

boy had been playing with a toy lightsaber and pretending it was an erect penis.

He also stated that C.L. had attempted to embarrass his sister while she was on

the phone by eating a banana and being “provocative” with the banana. Tr.

Vol. 3. pp. 44–45. Although Laird admitted that he rubbed C.L.’s belly while

they were in bed, he denied having ever touched C.L.’s penis or making C.L.

touch his penis. During a second interview, Laird again denied having touched

C.L. improperly or having C.L. touch him improperly. He did state, however,

that if he did touch C.L. inappropriately, it would have been accidental. During

the police interview, Laird admitted that he was attracted to younger males, or

as he put it, “younger dudes.” Tr. Vol. 3, p. 89. He also responded positively

when asked if he found “young teens sexually attractive.” Id. at 90. But he later

backtracked and claimed to be attracted only to “of age teens.” Id. at 92.

[6] The police searched Laird’s computer. On a password-protected account with

Laird’s name, the police found an internet search history that included searches

for “naked twelve year old boy,” “nude twelve year old boy,” “young boy

giving his first handjob,” “young boy giving a handjob,” and “boys first

handjob fast cum,” in addition to other searches for naked young boys’ penises,

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father-son sex acts, and sex acts between men and boys. Appellant’s App. Vol.

2, pp. 75–103.

[7] On January 28, 2016, the State charged Laird with one count of Level 4 felony

child molesting. Prior to trial, the State filed a notice of intent to introduce

evidence under Evidence Rule 404(b) regarding the following: (1) Laird’s

internet search history from December 12, 2015 showing that Laird searched

for the terms “naked twelve year old boy” and “nude twelve year old boy”; (2)

Laird’s internet search history from December 22, 2015 showing that Laird

searched for the terms “young boy giving his first handjob,” “young boy giving

a handjob,” and “boys first handjob fast cum”; (3) Laird’s 2016 conviction for

dissemination of matter harmful to minors in which the victim was his

underage niece; and (4) an incident in 1999 in which a nine-year-old boy

alleged that Laird placed touched the child’s genitals while in a hotel hot tub.

[8] Laird filed a motion seeking to exclude this evidence. The trial court held a

hearing on these evidentiary matters on April 15, 2017. At the conclusion of the

hearing, the trial court ruled that only the evidence of the searches on

December 22, 2015, which was only three days before the incident with C.L.,

would be admissible; the court ruled that evidence regarding the other internet

searches and prior incidents would be inadmissible.

[9] A jury trial was held on April 18–20, 2017. During the State’s opening

statement, the prosecuting attorney mentioned Laird’s internet searches on

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December 22, 2015. Laird’s counsel objected, and the following exchange

between the trial court and defense counsel took place:

[Defense]: Just objecting for the record, that I don’t think the evidence is going to show this and that it’s inappropriate for Opening Statement, just objecting for the record.

THE COURT: Well, the record will reflect that and I think it’s already been ruled upon in preliminary, I haven’t heard any reason to be contrary to that ruling.

Tr. Vol. 2, p. 94.

[10] Indiana State Police Detective Sergeant Christopher Cecil testified that he

searched Laird’s computer and found the search history that included searches

for the terms “young boy giving his first handjob,” “young boy giving a

handjob,” and “boy’s first handjob fast cum,” all on December 22, 2015. Id. at

132–33. Laird made no objection to this testimony. See id.

[11] Immediately prior to the State’s closing argument, Laird’s counsel informed the

trial court, “I just want the record to reflect the continuing objection to the three

google search terms that I objected to in [the prosecuting attorney]’s opening

statement so that I’m not interrupting in, during his closing argument.” Id. at

156. The prosecuting attorney responded, “And I think for the record, Judge,

[defense counsel] has objected throughout the preliminary proceedings in

regards to the use of those, he objected in opening and I certainly understood

his intentions for that objection and they continue throughout the trial.” Id.

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[12] The jury found Laird guilty as charged. At a sentencing hearing held on June

28, 2017, the trial court sentenced Laird to ten years of incarceration. Laird

now appeals.

Discussion and Decision

[13] Laird’s sole argument on appeal is that the trial court erred in admitting the

evidence regarding the internet search history found on his computer. Decisions

regarding the admission of evidence are left to the sound discretion of the trial

court. Harrison v. State, 32 N.E.3d 240, 250 (Ind. Ct. App. 2015), trans. denied.

On appeal, we review the trial court’s decision only for an abuse of that

discretion, and the court abuses its discretion only if its decision regarding the

admission of evidence is clearly against the logic and effect of the facts and

circumstances before it, or if the court has misinterpreted the law. Id.

[14] To preserve a claim of evidentiary error for purposes of appeal, a defendant

must make a contemporaneous objection at the time the evidence is introduced.

Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010) (citing Jackson v. State, 735

N.E.2d 1146, 1152 (Ind. 2000)). This is true regardless of whether the appellant

filed a pre-trial motion seeking to exclude the evidence in question. Id. “The

purpose of this rule is to allow the trial judge to consider the issue in light of any

fresh developments and also to correct any errors.” Id.

[15] Here, Laird filed a pre-trial motion in limine to exclude reference to his internet

search history; he also objected when the prosecutor referenced the internet

search evidence in the State’s opening statement. However, Laird did not object

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at the time the evidence was introduced at trial.1 He therefore failed to preserve

the issue for appeal.2 See id. Our conclusion is not altered by the fact that Laird

made a “continuing” objection prior to the State’s closing argument. At that

point, the evidence in question had already been presented to the jury, and it

was too late to make a continuing objection. See id. (concluding that appellant

failed to preserve evidentiary issue where his attempt to lodge a continuing

objection was made only after the jury was presented with all of the evidence in

question).

[16] A claim that has been forfeited by a defendant’s failure to make a timely

objection can still be reviewed on appeal if the court determines that a

fundamental error occurred. Id. However, the fundamental error exception to

the contemporaneous-objection requirement applies only “‘when the error

constitutes a blatant violation of basic principles, the harm or potential for harm

is substantial, and the resulting error denies the defendant fundamental due

process.’” Id. (quoting Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006)). The

alleged error must either make a fair trial impossible or constitute clearly blatant



1 For the same reason, we think Evidence Rule 103(b) is inapplicable. This rule provides that “Once the court rules definitively on the record at trial a party need not renew an objection or offer of proof to preserve a claim of error for appeal.” Here, the court did not rule definitively on the record at trial because Laird failed to make an objection at trial when the evidence was offered. Had he done so, and the trial court overruled his objection, then Evidence Rule 103(b) would have acted to preserve a claim of error even if Laird did not continue to object after the trial court’s initial evidentiary ruling. See K.G. v. State, 81 N.E.3d 1078, 1080 (Ind. Ct. App. 2017) (noting that the defendant preserved his claim of evidentiary error by renewing his pre-trial objection at the time the evidence was admitted, giving the trial court the opportunity to definitively rule on the record per Evidence Rule 103(b)). 2 The State does not argue that Laird failed to preserve his claim of evidentiary error. The State acknowledges that Laird did not object at the time the evidence was admitted but argues that the result is the same regardless of whether we view the issue was one of preserved error or fundamental error.

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violations of basic and elementary principles of due process. Id. (citing Clark v.

State, 915 N.E.2d 126, 131 (Ind. 2009)). The fundamental error exception is

“extremely narrow” and reaches only those errors that are so blatant that the

trial judge should have taken action sua sponte. Knapp v. State, 9 N.E.3d 1274,

1281 (Ind. 2014) (citing Brewington v. State, 7 N.E.3d 946, 974 (Ind. 2014). “In

sum, fundamental error is a daunting standard that applies ‘only in egregious

circumstances.’” Id. (quoting Brown v. State, 799 N.E.2d 1064, 1068 (Ind.

2003)).

[17] Laird contends that the evidence regarding his internet search history was

inadmissible under Indiana Evidence Rule 404(b). This rule provides:

(b) Crimes, Wrongs, or Other Acts.

(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character. (2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must: (A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and (B) do so before trial--or during trial if the court, for good cause, excuses lack of pretrial notice.

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[18] Evidence Rule 404(b) is designed to prevent the jury from making the

“forbidden inference” that prior wrongful conduct suggests present guilt.

Halliburton v. State, 1 N.E.3d 670, 681 (Ind. 2013) (citing Byers v. State, 709

N.E.2d 1024, 1026–27 (Ind. 1999)). Or, as stated in Bassett v. State, 795 N.E.2d

1050, 1053 (Ind. 2003), the purpose behind Evidence Rule 404(b) is to

“prevent[] the State from punishing people for their character, and evidence of

extrinsic offenses poses the danger that the jury will convict the defendant

because . . . he has a tendency to commit other crimes.” (internal quotation

omitted). In assessing the admissibility of evidence under Evidence Rule 404(b),

the trial court must first determine that the evidence of other crimes, wrongs, or

acts is relevant to a matter at issue other than the defendant’s propensity to

commit the charged act, and then balance the probative value of the evidence

against its prejudicial effect pursuant to Evidence Rule 403. Halliburton, 1

N.E.3d at 681–82 (citing Wilson v. State, 765 N.E.2d 1265, 1270 (Ind. 2002)).

The effect of Rule 404(b) is that evidence is excluded only when it is introduced

to prove the forbidden inference of demonstrating the defendant’s propensity to

commit the charged crime. Rogers v. State, 897 N.E.2d 955, 960 (Ind. Ct. App.

2008), trans. denied.

[19] Here, the State argues that the evidence regarding Laird’s internet search

history was admissible under Evidence Rule 404(b)(2) to prove his

“preparation” or “plan” to molest C.L.

[20] In support of its argument, the State relies on Remy v. State, 17 N.E.3d 396 (Ind.

Ct. App. 2014), trans. denied. In that case, the defendant was convicted of

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several counts of child molesting and one count of performing sexual conduct

in the presence of a minor. The conduct of the defendant towards his victim, his

girlfriend’s eleven-year-old son, reads like a parade of horrors. Included in

Remy’s depraved behavior was wrapping the boy’s nude body in plastic wrap

and then performing oral sex on him. During the trial, the State introduced

several explicit pornographic images that had been found in the defendant’s

home. Among these images was one of a man wrapped in plastic wrap

engaging in oral sex with another man.

[21] On appeal, Remy argued inter alia that the trial court erred by admitting the

explicit pornographic images because they were irrelevant, unduly prejudicial,

and inadmissible under Evidence Rule 404(b). The State argued that the images

were properly admitted to prove the defendant’s plan to commit the charged

crimes and that he was “clearly grooming” the victim. Id. at 399. The court

cautioned that:

[w]e believe this case presents an example of how a real danger exists that rationales such as “plan” and “grooming” are becoming all-purpose excuses to admit prejudicial evidence in child molestation cases. We must take care to ensure that Rule 404(b)’s exceptions do not swallow the rule.

Remy, 17 N.E.3d at 399–400 (footnote omitted). The Remy court concluded that

the admission of the images did implicate Evidence Rule 404(b) because some

of the pornographic images appeared to include children and because showing

the pornography to the victim might itself constitute the crime of dissemination

of materials harmful to a minor. Id. Ultimately, the court held:

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Because the danger of unfair prejudice accompanying the admission of these pornographic images substantially outweighs their probative value, we conclude the trial court erred by admitting the vast majority of these images. Given our standard of review, the fact that Remy showed the image involving saran wrap and oral sex to [the victim], and the image’s strong parallel to one of the charged acts, we would conclude the trial court did not abuse its discretion by admitting [the image involving plastic wrap and oral sex]. However, the remainder of the challenged images should not have been admitted at trial.

Id. at 401 (emphasis added).

[22] In the present case, the evidence regarding Laird’s internet search history is

similar to the pornographic image involving plastic wrap in Remy. That is, the

evidence of Laird’s internet search history is admissible under the “plan”

exception in Rule 404(b)(2) because the searches were close in time to when

Laird committed the acts against C.L. and because Laird searched the internet

for behavior to what he did to C.L.—young boys manipulating men’s penises.

[23] We also note that the trial court did not permit the State to introduce other

evidence found on Laird’s computer and only permitted the State to introduce

evidence of Laird’s internet search history that was both close in time and very

similar to his actions against C.L. Given these facts and circumstances, the trial

court did not err in admitting the evidence of Laird’s internet search history

under the “plan” exception to Evidence Rule 404(b). See Remy 17 N.E.3d at

401. This is true regardless of whether we view Laird’s claim under the abuse of

discretion standard or the fundamental error standard.

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[24] The State also argues that the evidence of Laird’s internet search history was

admissible under the “intent” exception. The intent exception is available only

“when a defendant goes beyond merely denying the charged culpability and

affirmatively presents a claim of particular contrary intent.” Goldsberry v. State,

821 N.E.2d 447, 455 (Ind. Ct. App. 2005). Laird argues that he denied

committing the acts against his nephew and did not place his intent at issue.

Although Laird did not assert a contrary intent at trial, he did state in his pre

trial statements to the police that, if he touched nephew in an inappropriate

manner, it was accidental. This is sufficient to place his intent at issue. See Iqbal

v. State, 805 N.E.2d 401, 408 (Ind. Ct. App. 2004) (defendant’s pre-trial

statement to the police that a firearm went accidentally was sufficient to place

his intent at issue and therefore permit state to introduce evidence of a prior

incident in which defendant threatened defendant), trans. denied. Accordingly,

the evidence regarding Laird’s internet search history was also admissible under

the “intent” exception found in Evidence Rule 404(b)(2).

[25] Lastly, we are of the opinion that any error in the admission of Laird’s internet

search history was harmless. We will not reverse a conviction due to

evidentiary error unless this error affects the substantial rights of the defendant.

Teague v. State, 978 N.E.2d 1183, 1189 (Ind. Ct. App. 2012). An error is

harmless if there is substantial independent evidence of guilt and we are

satisfied that there is no substantial likelihood the challenged evidence

contributed to the conviction. Id.

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[26] The evidence against Laird consisted mostly of the testimony of the victim.

C.L.’s testimony was consistent and unequivocal. He also informed his sister of

the touching immediately after they occurred and thereafter told his father, all

on the same night that the touching occurred. Moreover, although Laird denied

touching C.L. in his pre-trial statements to the police, he admitted to being

sexually attracted to younger males. Given the strength of the evidence against

Laird, the contested admitted evidence was merely cumulative.

Accordingly, we affirm the judgment of the trial court.