COA upholds child molesting conviction despite yearslong delay in bringing charges

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Olivia Covington for www.theindianalawyer.com

The Indiana Court of Appeals has upheld a man’s felony conviction for molesting his ex-girlfriend’s daughter after determining the man failed to prove that an eight-year delay in the filing of the charges against him violated his due process rights.

In Mark Reed v. State of Indiana, 27A02-1704-CR-699, Mark Reed began dating 10-year-old J.D.’s mother in 2001. Once when J.D. and her younger sister, A.D., were alone with Reed, he told them that a spirit named Freddie would enter his body and make him do “bad things.”

Sometime later, Reed took J.D. to a secluded area of a park, told her Freddie had come back, and forced her to take off her clothes from the waist down while he sexually assaulted her. He then told J.D. not to tell anyone about the assault or Freddie would “‘make (her) disappear.’”

Sometime prior to January 2008, J.D. told a friend about the molestations and wrote a letter to a former boyfriend about Reed’s abuse. Then, after seeing Reed in a convenience store when she was 16, J.D. told her mother about the molestation.

A police report was initially filed in 2008, and J.D. was interviewed and asked to identify the spot in the park where Reed had assaulted her. However, the case against Reed was not presented to the prosecutor’s office at that time, so he was not charged with molesting J.D. until the facts and evidence were reviewed again in April 2016.

The allegations against Reed included two counts of Class A felony child molesting and an allegation that he was a habitual offender. Reed moved to dismiss the charges, arguing the delay in their filing violated his due process rights and impaired his ability to mount a defense. But after a local investigator testified that “‘there was nothing generated that could (have been) presented to the prosecutor to review the case’” in 2008, the trial court denied Reed’s motion.

The case then proceeded to a jury trial at which the trial court granted a directed verdict on one of the charges against Reed. He was then found guilty on the other charge and was found to be a habitual offender.

On appeal, Reed argued the trial court erred in denying his motion to dismiss and renewed his due process claim. But the Indiana Court of Appeals affirmed the trial court’s decision in a Thursday opinion, with Judge Elaine Brown noting there is no statute of limitations for filing a Class A felony charge.

“Further, Reed does not argue or point to the record to show that any witness helpful to his defense had become unavailable,” Brown said. “In addition, he does not demonstrate that the witnesses who did testify at trial, including those he called as defense witnesses, were unable to testify due to faded memories or were equivocal due to diminished memories such that his right to a fair trial was substantially prejudiced.”

Further, Brown wrote the appellate court “cannot find on the record before us…that the State waited until 2016 to charge Reed because it harbored a plan to gain a tactical advantage over him, that the State was motivated by some other impermissible p

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