Appellate panel upholds child molesting conviction despite evidence error

Despite the erroneous admission of evidence related to pornography, a Huntington County man is not entitled to a new trial on his child molesting conviction, the Indiana Court of Appeals has ruled.

In Robert A. Cutshall, II v. State of Indiana, 20A-CR-1866, Robert Cutshall and his 14-year-old child V.C. were babysitting Cutshall’s grandchildren in April 2019 when Cutshall began taking shots of whiskey. V.C. testified that after the children had gone to bed, she saw her father under the covers with one of the children, a 3-year-old. The child’s legs were in the air, and Cutshall was moving back and forth. The child was crying, but Cutshall was telling her to be quiet.

V.C. informed her mother, Michelle, of the incident, and the two packed their things and left the home with the grandchildren. The child was eventually taken to a sexual assault treatment center for an evaluation, which revealed blunt force trauma to her genitals and Cutshall’s DNA on her hands and inner thigh.

Cutshall was charged and convicted on a felony child porn charge, but the jury hung on a charge of Level 1 felony child molesting. At a retrial on that charge in September 2020, the state introduced evidence that Cutshall had accessed “a large amount of adult pornographic material” on the day he allegedly molested the child.

Cutshall was convicted of child molesting on retrial in Huntington Superior Court and was sentenced to 35 years in the Department of Correction, with two years suspended to probation, consecutive to a previously imposed child porn sentence. He appealed, but the Indiana Court of Appeals affirmed Thursday.

Cutshall’s first argument on appeal was that the state did not prove penetration beyond a reasonable doubt. While the child was unable to provide direct testimony on this issue, Judge Margret Robb wrote that there was “sufficient evidence to show penetration because penetration can be inferred from circumstantial evidence … .”

Specifically, Robb pointed to V.C.’s testimony and the results of the child’s sexual assault examination.

“We cannot reweigh evidence,” Robb wrote. “… From the evidence presented at trial, the trier of fact could have inferred” penetration.

Cutshall also challenged the admission of evidence that he had view adult porn on the day in question, arguing such evidence was inadmissible under Indiana Evidence Rule 404(b). While the COA agreed that the evidence of pornography “was not similar enough to Cutshall’s alleged actions to be considered relevant,” it found that the error was harmless.

“… (G)iven the substantial independent evidence of Cutshall’s guilt we do not believe that the erroneous admission of that evidence requires a new trial here,” Robb wrote for the unanimous appellate panel. “In this case, there is no substantial likelihood that the admission of testimony about pornography contributed to the conviction. Therefore, the trial court’s error in this case was harmless error.”