Tony W. Heroy v. State of Indiana (mem. dec.)
20A05-1607-CR-1572
| Ind. Ct. App. | Mar 21, 2017Background
- Between ages ~7–10, B.G. alleged repeated sexual contact by her step-uncle Tony Heroy, including digital and oral contact and rubbing of his penis on her; some encounters involved payment and requests for secrecy.
- In July 2014 B.G. disclosed the abuse to a family member; a recorded forensic interview of B.G. was made at the Child and Family Advocacy Center.
- The State charged Heroy with Class A felony child molesting; while jailed he wrote a letter asking his wife to find a witness to falsely claim B.G. lied; the letter was intercepted and turned over to police.
- At trial B.G. testified but had memory gaps; the State played and sought to admit a redacted portion of her earlier videotaped interview to refresh/ preserve her statements.
- The trial court admitted the letter and the videotaped interview over Heroy’s objections; a jury convicted Heroy and the court imposed a 45-year executed sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of letter | Letter shows consciousness of guilt and intent to discredit victim; relevant and probative | Letter is unfairly prejudicial and likely to inflame jurors | Admitted: probative value outweighed prejudice; no abuse of discretion |
| Admissibility of videotaped interview (hearsay) | Interview qualifies as a recorded recollection under Evid. R. 803(5) | Hearsay; B.G.’s live testimony was sufficient so interview should be excluded | Admitted: B.G. couldn’t recall details, adopted interview as accurate — recorded recollection exception applies |
| Confrontation Clause re: interview | Admission did not violate confrontation because B.G. testified and was cross-examined at trial | Admission deprived meaningful cross-examination due to time lapse and reliance on interview | No violation: B.G. appeared at trial and was cross-examined before and after interview admission |
| Sufficiency of evidence / incredible dubiosity | State: victim’s testimony (including oral sex) supports conviction; uncorroborated testimony can sustain conviction | Heroy: B.G.’s inconsistent timing and memory make her testimony inherently dubious | Evidence sufficient; incredible dubiosity inapplicable (testimony not inherently contradictory/coerced and circumstantial support exists) |
Key Cases Cited
- Drane v. State, 867 N.E.2d 144 (Ind. 2007) (standard for sufficiency review)
- Anglemyer v. State, 868 N.E.2d 482 (Ind. 2007) (sentencing principles and advisory sentence guidance)
- Cardwell v. State, 895 N.E.2d 1219 (Ind. 2008) (appellate review of sentence appropriateness)
- Hubbard v. State, 719 N.E.2d 1219 (Ind. 1999) (victim’s uncorroborated testimony can support conviction)
- Moore v. State, 27 N.E.3d 749 (Ind. 2015) (scope of the incredible dubiosity rule)
- Love v. State, 761 N.E.2d 806 (Ind. 2002) (incredible dubiosity standard: rare, strict test)
- Fowler v. State, 829 N.E.2d 459 (Ind. 2005) (Confrontation Clause satisfied when declarant appears for cross-examination)
- Coleman v. State, 946 N.E.2d 1160 (Ind. 2011) (definition of hearsay)
- Sanders v. State, 840 N.E.2d 319 (Ind. 2006) (all relevant evidence is prejudicial; Rule 403 balancing)
- Horton v. State, 936 N.E.2d 1277 (Ind. Ct. App. 2010) (videotaped interview admissible under recorded recollection when witness can’t recall details but adopts prior statements)