Broude v. State
2011 Ind. App. LEXIS 1840
| Ind. Ct. App. | 2011Background
- A.M., age six, alleged sexual molestation by Broude, who dated her mother, began living with them in 2008.
- Between Sept. and Dec. 2008 Broude allegedly committed multiple acts of molestation, including placing his mouth on A.M.'s genitals and inserting objects into her rectum.
- A.M. disclosed the offenses to her mother in Dec. 2008, after which Broude was removed; A.M. developed PTSD-like behaviors.
- In Feb. 2010 the State charged Broude with four counts of class A felony child molesting, later amended to three A counts and one C count.
- At trial, A.M. could not testify in open court due to distress; the State sought to use closed-circuit television under the Protected Person Statute.
- The trial court granted a 14-day continuance and allowed A.M. to testify by closed circuit television over Broude’s objection, finding potential harm to A.M. and noting Broude’s plea-negotiation extensions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether notice under the Protected Person Statute was required to be given before trial | Broude: ten-day notice mandatory before testimony outside courtroom | Broude: notice must precede trial; statutory exception not shown | No reversible error; continuance and notice adequate |
| Sufficiency of evidence for Count II (oral sex by deviate conduct) | Dulin's testimony constitutes substantive evidence of coercive conduct | Insufficient proof of forced oral sex | Sufficient evidence supports Count II |
| Material variance between charging information and proof on Count III | State alleged finger-in-anus; trial proof showed rectal object intrusion | Variance prejudicial; same facts tried | Variance exists; Count III reversed and vacated |
Key Cases Cited
- Guy v. State, 755 N.E.2d 248 (Ind. Ct. App. 2001) (admission of evidence governed by trial court discretion)
- Banks v. State, 567 N.E.2d 1126 (Ind. 1991) (hearsay may be considered for substantive purposes when properly admitted)
- Mitchem v. State, 685 N.E.2d 671 (Ind. 1997) (variance between information and proof evaluated for prejudice and double jeopardy)
- Allen v. State, 720 N.E.2d 707 (Ind. 1999) (variance between charge and trial evidence may permit retrial on same facts)
- Clark v. State, 728 N.E.2d 880 (Ind. Ct. App. 2000) (sufficiency review limits reweighing credibility; courts consider favorable evidence)