ATTORNEY FOR APPELLANT

Thomas G. Godfrey

Anderson, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Angela N. Sanchez

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Robert Seal,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

July 15, 2015

Court of Appeals Case No. 48A02-

1410-CR-775

Appeal from the Madison Circuit 

Court

The Honorable Dennis D. Carroll, 

Judge 

Case No. 48C06-1308-FA-1546

Crone, Judge.

Case Summary

[1] Robert Seal appeals his convictions for two counts of class A felony child 

molesting, two counts of class B felony incest, and one count of class B felony 

sexual misconduct with a minor. He argues that his federal and state 

constitutional rights were violated by the State’s failure to preserve audio 

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recordings of his victims’ interviews, that the trial court abused its discretion in 

instructing the jury that time is not an element of the offenses, and that his 

conviction for class B felony sexual misconduct with a minor should have been 

merged with one of the class A felony child molesting convictions because the 

conduct supporting those convictions constitutes a single transaction under the 

continuous crime doctrine. We conclude that no violation of Seal’s 

constitutional rights occurred, the trial court did not abuse its discretion in 

instructing the jury, and the continuous crime doctrine is inapplicable. 

Therefore, we affirm.

Facts and Procedural History

[2] From 2007 to 2013, Seal lived with his two daughters, R.S. and R.M.S., in a 

two-bedroom trailer in Madison County. During some of that time, two 

younger children lived with them, Seal’s son R.W.S. and his stepdaughter J.H. 

R.S. and R.M.S. slept with Seal in his bedroom with the door locked. R.W.S. 

and J.H. slept in either the living room or the second bedroom. R.S. and 

R.M.S. were home schooled, and the two younger children went to public 

school. 

[3] Beginning in July 2007, when R.S. was ten years old, until February 2013,

when she was sixteen, Seal touched her breasts, bottom, and vagina with his 

hand and engaged in sexual intercourse and oral sex with her on a regular basis. 

Beginning in 2009, when R.M.S. was ten years old, Seal had sexual intercourse 

and oral sex with her. These acts took place in Seal’s bedroom with the door 

locked. Both girls were present and witnessed Seal have sexual intercourse and

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oral sex with the other. Sometimes Seal placed a camera on a tripod and 

recorded videos of their sexual activities. Seal told the girls that they were 

married to him, and they felt that their relationship with their father was like 

that of husband and wife. 

[4] In June 2013, Seal planned to marry a woman, after which she and her eightyear-old daughter would move in with him. R.S. and R.M.S. were concerned 

about the eight-year-old’s safety if she were to live with them, so they told the 

woman about the sexual abuse. When Seal found out from the woman what 

the girls had told her, he became angry, argued with the girls, and left the trailer 

with his laptop and his moped.

[5] The girls were scared that Seal would return and hurt them, so they called 911. 

When the police arrived, the girls were “frantic, they were upset, crying ... they 

were screaming, yelling, talking about they were in fear of their life, afraid that 

they were going to be killed by the father.” Tr. at 124. An officer spoke 

separately with each girl for five to ten minutes in a patrol car to find out why 

they called 911. He attempted to create and download audio recordings of 

these conversations, but later the police were unable to find the recordings. The 

officer did not know why the recordings were lost. The officer prepared a 

written report of the content of his conversations with the girls that he 

forwarded to the detective who prepared the probable cause affidavit. Id. at 

129-30. Later that day, the girls were brought to the police station, where they 

provided recorded statements. 

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[6] A police officer called Seal and asked him to come to the station, but Seal said 

that he was upset because his moped had run out of gas, he did not know where 

he was, and he was not in the right frame of mind to meet or talk with police. 

Seal was arrested eight months later in Fort Wayne.

[7] About a week after the 911 call, the detective conducted follow-up interviews 

with the girls at the station. Although the police attempted to video record 

these follow-up interviews, for unknown reasons the recordings failed to 

capture the audio. However, the detective prepared a written summary of the 

interviews.

[8] The State charged Seal with class A felony child molesting of R.S., class B 

felony sexual misconduct with R.S., class B felony incest with R.S., class A 

felony child molesting of R.M.S., and class B felony incest with R.M.S. At 

trial, the State tendered an instruction to clarify that time is not an element of 

the offenses. Seal objected. The trial court suggested modifying the instruction 

to explain that time is not an element but the victim’s age at the time of the 

offense is an element. The trial court gave this modified instruction over Seal’s 

objection.

[9] The jury found Seal guilty as charged. The trial court sentenced Seal to an 

aggregate term of seventy-two years. He appeals.

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Discussion and Decision

Section 1 - Seal’s federal and state constitutional rights were 

not violated by the State’s failure to preserve audio recordings 

of the victims’ interviews.

[10] Seal contends that the State’s failure to preserve the audio recordings of his 

daughters’ interviews in the patrol car immediately following their 911 call and 

their follow-up interviews a week later violated his federal and state 

constitutional rights.

1

 In essence, Seal’s argument is that the State failed to 

preserve evidence, which is generally analyzed as a due process issue.

When determining whether a defendant’s due process rights have been 

violated by the State’s failure to preserve evidence, we must first decide 

whether the evidence is potentially useful evidence or material 

exculpatory evidence. 

Evidence is materially exculpatory if it possesses an exculpatory value 

that was apparent before the evidence was destroyed, and is of such a 

nature that the defendant would be unable to obtain comparable 

evidence by other reasonably available means. Exculpatory evidence 

is defined as evidence tending to establish a criminal defendant’s 

innocence. A prosecutor’s duty to preserve exculpatory evidence is 

limited to evidence that might be expected to play a significant role in 

the defendant’s defense. Failure to preserve material exculpatory 

evidence violates due process regardless of whether the State acted in 

good or bad faith. 

Evidence is merely potentially useful if no more can be said than that it 

could have been subjected to tests, the results of which might have 

exonerated the defendant. The State’s failure to preserve potentially 

1

 In broad strokes, Seal cites the Sixth and Fourteenth Amendments to the United States Constitution and 

Article 1, Sections 12 and 13 of the Indiana Constitution, asserting that he was denied effective assistance of 

counsel, the right to effective cross-examination, the right to present a defense, and due process.

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useful evidence does not constitute a violation of due process rights 

unless the defendant shows bad faith on the part of the police.

State v. Durrett, 923 N.E.2d 449, 453 (Ind. Ct. App. 2010) (citations, quotation 

marks, and brackets omitted).

[11] With regard to the circumstances of this case, two facts are significant. First, 

there is no constitutional or statutory requirement that the police record 

interviews with victims.

2

 Second, the State attempted to record the audio of the 

interviews, and Seal does not contend, nor is there any evidence, that the State 

intentionally sabotaged or destroyed the audio recordings. Therefore, even if 

we assumed that the content of the interviews contained potentially useful

evidence, there would be no due process violation because Seal cannot show 

bad faith.

[12] However, Seal contends that it does not matter whether the State acted in good 

faith or bad faith because the interviews contained materially exculpatory 

evidence. According to Seal, the girls had many reasons to fabricate their story 

and his “counsel could have shown the jury the manner in which [the girls]

were not telling the truth by using DVDs in court; and the jury could have 

judged for itself whether to believe whether the victims’ explanations given at 

trial were contrived or appeared reasonable.” Appellant’s Br. at 12. The 

interviews were summarized in the police reports, and Seal directs to no 

2 We have held that Article 1, Section 12 of the Indiana Constitution does not require the recording of

interrogations of the accused in places of detention. Gasper v. State, 833 N.E.2d 1036, 1041 (Ind. Ct. App. 

2005), trans. denied. 

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statements that tended to establish his innocence. The interviews do not strike 

us as materially exculpatory evidence but rather as impeachment evidence. 

[13] We conclude that Seal’s due process rights were not violated by the State’s 

failure to preserve the audio recordings of the victims’ interviews. To the extent 

that Seal asserts that his rights to effectively cross-examine the witnesses and to 

present a defense were violated, we note again that the interviews were 

summarized, both girls testified, and Seal fails to explain how the summaries 

were inadequate to assist him in cross-examining the girls. Although he sets 

forth numerous facts that he argues were relevant to the girls’ motives to 

fabricate, he was not limited in his scope of cross-examining the girls with 

regard to those facts. In short, we find no federal or state constitutional 

violations in this regard.

Section 2 - The trial court did not abuse its discretion in 

instructing the jury that time is not an element of the offenses.

[14] The manner of instructing the jury lies within the sound discretion of the trial 

court, and we will reverse the trial court’s decision whether to give an 

instruction only upon an abuse of that discretion. Gravens v. State, 836 N.E.2d 

490, 493 (Ind. Ct. App. 2005), trans. denied (2006). “‘The purpose of jury 

instruction is to inform the jury of the law applicable to the facts without 

misleading the jury and to enable it to comprehend the case clearly and arrive at 

a just, fair, and correct verdict.’” Fowler v. State, 900 N.E.2d 770, 773 (Ind. Ct. 

App. 2009) (quoting Dill v. State, 741 N.E.2d 1230, 1232 (Ind. 2001)). In

evaluating jury instructions on appeal, “this Court looks to whether the 

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tendered instructions correctly state the law, whether there is evidence in the 

record to support giving the instruction, and whether the substance of the 

proffered instruction is covered by other instructions.” Short v. State, 962 

N.E.2d 146, 150 (Ind. Ct. App. 2012). 

[15] Seal challenges the following instruction:

Time is not an element of the crime of Child Molesting. If you 

find that the evidence available to the State of Indiana does not permit 

the State to specify the exact date of the offense, and if you find 

beyond a reasonable doubt that the Defendant committed the offenses 

within reasonable proximity to the date alleged, then the State has met 

its burden of proof on the issue of the time of the offense.

Although time is not an element of the offenses charged, the 

age of the victims at the time of the offenses charged is an element.

Appellant’s App. at 51; Tr. at 602.

[16] Seal appears to concede that the instruction is a correct statement of the law. 

See Baker v. State, 948 N.E.2d 1169, 1174 (Ind. 2011) (“In general, the precise 

time and date of the commission of a child molestation offense is not regarded 

as a material element of the crime.”). He also does not argue that the evidence 

does not support giving the instruction or that the substance of the instruction 

was covered by other instructions. His argument is that the instruction was 

more confusing than helpful and was unnecessary. Specifically, he asserts that 

there is a conflict between “if you find ... that the Defendant committed the 

offenses within reasonable proximity to the date alleged, then the State has met 

its burden of proof” and “the age of the victims at the time of the offenses 

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charged is an element.” Appellant’s App. at 51. He contends that by 

instructing the jury that all the State had to prove was that he committed the 

offenses within a reasonable proximity to the dates charged, the jurors might be 

misled into treating the dates as they related to the ages of the girls as

unimportant. 

[17] Under the facts of this case, we cannot conclude that the jury was confused by 

the instruction. Age is an element of all the offenses, and the instruction 

unequivocally stated so. Based on the statute in effect when Seal committed the 

offenses, for class A felony child molesting, the State was required to prove that 

he performed or submitted to sexual intercourse or deviant sexual conduct with 

a child who was under the age of fourteen. Ind. Code § 35-42-4-3. For class B 

felony sexual misconduct with a minor, the State was required to prove that he 

performed or submitted to sexual intercourse or deviant sexual conduct with a

child who was at least fourteen but less than sixteen. Ind. Code § 35-42-4-9. 

For class B felony incest, the State was required to prove that he engaged in 

sexual intercourse or deviant sexual conduct with another person who was 

under the age of sixteen, when he knew that the other person was related to him 

biologically as his child. Ind. Code § 35-46-1-3. 

[18] In the charging information, the State did not allege that Seal committed the 

offenses on specific dates. Rather, the State charged Seal with committing the 

offenses within a time range. Appellant’s App. at 66-68. With regard to R.S.,

the State charged Seal with committing class A felony child molesting between 

January 1, 2007, and November 3, 2010, when she was under fourteen. Id. at 

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66. The State charged him with class B felony sexual misconduct with a minor 

between November 4, 2010, and November 3, 2012, when R.S. was at least 

fourteen but not more than sixteen. Id. R.S.’s age is important and affected the 

felony level of the offenses. However, the evidence showed that Seal regularly 

and frequently engaged in sexual intercourse and deviant sexual conduct with

R.S. throughout both time periods, well before and well after R.S.’s birthday. 

This is not a situation where a defendant committed a single act which is 

punishable as a different class of felony depending upon whether it occurred 

before or after the victim’s birthday. See Barger v. State, 587 N.E.2d 1304, 1307 

(Ind. 1992) (“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.”). 

[19] As for R.M.S., the charging information alleged that Seal committed child 

molesting and incest between November 3, 2009, and August 31, 2012. R.M.S.

was under the age of fourteen for the entire time as charged. Her age during 

that time period was not a fact in dispute. Further, as with R.S., the evidence 

showed that Seal committed multiple instances of sexual intercourse and 

deviant sexual conduct. 

[20] In closing argument the State explained the application of the instruction and 

how the time period alleged in the charges was related to the victims’ testimony 

and ages. Tr. at 555, 559-60. Given the charges and the evidence produced at 

trial, we cannot conclude that the instruction confused the jury. Accordingly, 

the trial court did not abuse its discretion in giving the instruction.

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Section 3 - The continuous crime doctrine does not apply.

[21] Although Seal concedes that he committed acts that comprise the offenses of 

class A felony child molesting of R.S. and class B felony sexual misconduct 

with R.S., he contends that the continuous crime doctrine applies to his 

convictions and requires that the latter be merged with the former.3

 Both Seal 

and the State assert that the continuous crime doctrine applies when “actions 

which are sufficient in themselves to constitute separate criminal offenses may 

be so compressed in terms of time, place, singleness of purpose, and continuity 

of action as to constitute a single transaction.” Appellant’s Br. at 17 (citing 

Nunn v. State, 695 N.E.2d 124, 125 (Ind. Ct. App. 1998)); Appellee’s Br. at 20 

(citing a case that relied on Nunn). After this appeal was fully briefed, our 

supreme court handed down Hines v. State, 30 N.E.3d 1216 (Ind. 2015), in 

which it disapproved of Nunn’s phrasing of the doctrine, stating that it “too 

broadly paraphrased precedent.” Id. at 1220. Our supreme court stated that the

“continuous crime doctrine applies only where a defendant has been charged 

multiple times with the same ‘continuous’ offense.” Id. Specifically, the Hines

court stated,

The continuous crime doctrine is a rule of statutory construction and 

common law limited to situations where a defendant has been charged 

multiple times with the same offense. The continuous crime doctrine 

does not seek to reconcile the double jeopardy implications of two 

3

 We observe that the continuous crime doctrine is distinct from the concept of an “episode of criminal 

conduct,” which applies under Indiana Code Section 35-50-1-2 to limit the aggregate term of consecutive 

sentences when the convictions are not for crimes of violence and the “offenses or a connected series of 

offenses ... are closely related in time, place, and circumstance.”

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distinct chargeable crimes; rather, it defines those instances where a 

defendant’s conduct amounts only to a single chargeable crime. The 

Legislature, not this Court, defines when a criminal offense is 

“continuous,” e.g. not terminated by a single act or fact but subsisting 

for a definite period and covering successive, similar occurrences. We 

have applied the continuous crime doctrine in the context of felony 

murder and robbery, confinement, and kidnapping; situations where 

the crime charged, as defined by statute, was “continuous.” For 

example, in Eddy v. State, [496 N.E.2d 24, 28 (Ind. 1986),] we 

interpreted the statutory requirement that a homicide-robbery 

transaction be continuous to encompass a transaction where all the 

statutory elements of the robbery had been completed before the 

commission of the homicide.

Id. at 1219-20 (footnotes, citations, and quotation marks omitted). 

[22] The Hines court quoted at length from Eddy. In Eddy, the court interpreted the 

phrase “while committing” as it was used in the statute defining felony murder. 

496 N.E.2d at 27-28. At that time the statute provided, “A person who “kills 

another human being while committing or attempting to commit [certain listed 

felonies] commits murder, a felony.” Ind. Code § 35-42-1-1(2) (emphasis 

added). The Eddy court rejected the defendant’s contention that the offense of

felony murder required that the homicide occur before all the statutory elements 

of robbery were complete. 496 N.E.2d at 27-28. The Eddy court explained, “A 

homicide and robbery are deemed to be one continuous transaction when they 

are closely connected in time, place, and continuity of action.” Id. Thus, the 

continuous crime doctrine was useful in determining whether the defendant’s 

conduct constituted the single offense of felony murder by focusing on the scope 

of the phrase “while committing.”

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[23] In contrast to Eddy, in which homicide and robbery were statutorily defined as 

one crime if a person killed another human being while committing robbery, 

the crimes in Hines were class C felony criminal confinement and class D felony 

battery. The Hines court noted that the defendant “was not convicted of 

multiple charges of criminal confinement, nor multiple charges of battery. Nor 

is Battery a crime for which all of the elements necessary to impose criminal 

liability are also elements found in Criminal Confinement, or vice versa.” 30 

N.E.3d at 1221. The Hines court concluded that criminal confinement and 

battery “are two distinct chargeable crimes to which the continuous crime 

doctrine does not apply.” Id.

[24] Here, the evidence showed that Seal sexually molested R.S. multiple times both 

before and after she turned fourteen. The molestation of R.S. before she turned 

fourteen is one chargeable crime, and the molestation of R.S. after she turned 

fourteen is a different chargeable crime. See Ind. Code § 35-42-4-3; 35-42-4-9. 

Seal was not charged multiple times with the same offense. Under Hines, the 

continuous crime doctrine does not apply. 

[25] The extent to which Hines imposes new limitations upon the application of the 

continuous crime doctrine has yet to be discerned. Regardless of whether Hines

imposes a more restrictive use of the doctrine or not, we note that even under 

the broader application of the doctrine as articulated in Nunn, the doctrine 

would not apply under the facts of this case. Seal’s multiple acts of molestation 

committed over a five-year period cannot plausibly be considered “so 

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compressed in terms of time, place, singleness of purpose, and continuity of 

action as to constitute a single transaction.” Nunn, 695 N.E.2d at 125.

[26] Based on the foregoing, we affirm Seal’s convictions.

[27] Affirmed.

Brown, J., and Pyle, J., concur.

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