*1 Dwayne DOUGLAS, Appellant Robert
(Defendant Below), Indiana, Appellee
STATE of
(Plaintiff Below).
No. 4-184A3. Appeals
Court of Indiana,
Fourth District.
Oct. *2 waited, they
the side of the As bank. unzipped pants, Douglas exposed his his head, penis, placed his hands on M.R.'s perform upon made MR. fellatio him. Thereafter, and, Douglas fondled himself according testimony, "peed to M.R.'s on the Douglas of car. then floor" the drove to in his son's home. M.R.'s mother followed car, Douglas car. exited the her When pants M.R.'s mother noticed un- his were zipped. Suspicious due to other unex- incidents, plained questioned she MR. Douglas his while was inside son's house. M.R. then described what had occurred ear- lier. The instant resulted. first contends the refusing compel court erred in to the state produce police reports. to all relevant He mention, however, neglects to the Su Walker, Anderson, appellant. for Richard preme of Indiana issued a Writ of Court Pearson, Gen., Atty. Amy Linley E. required Mandamus in this case which the Gen., Good, Deputy Atty. Indi- Schaeffer police reports from trial court to exelude anapolis, appellee. for discovery orders.1 the YOUNG, Presiding Judge. power have no to review the actions We supreme of our court. trial court does Wayne Douglas was convicted Robert by obeying not err a Writ of Mandamus conduct, B criminal a Class jury of deviate highest state. issued the court of this felony, and child a Class C felo- years pris- in ny, and was sentenced to six Douglas argues the trial court Next expert allowing the state's witness appeals, raising these three issues: erred on. He give opinion her as to whether M.R. was 1) to trial court erred re- whether the incident. telling the truth about the On fusing require production police to Turnbloom, Brenda direct examination reports; worker, was asked her psychiatric social 2) allowing the court erred whether telling the opinion as to whether M.R. was give opinion to an an witness appellant's objection, she an- truth. Over young as to whether "I M.R. I think he's tell- swered: believe truth; telling the objec- to ing truth." She then testified 3) whether the evidence was sufficient behavior which tive observations M.R.'s his sustain convictions. story true. her to his led believe trial. We reverse and remand for a new clearly trial court erred The January incident occurred on The truth allowing give opinion an of the her MR., four-year-old male vice- 1988. supreme of another witness. Our fulness tim, rode to the bank. M.R.'s with such state specifically has held that court banking had some transactions mother improper, explaining: ments are separately so that complete and had driven alleged child victim takes Whenever an Douglas, boyfriend, could return his cases, M.R.'s mother was at car to his son. While stand such window, drive-up Douglas parked at accurately capacity to describe child's missing only Curiously this fact was not from his entire facts, his statement of the as well as case, argument appellant's section on this issue. statement of the but also from may meeting MR., with an adult which involve DWAYNE DOUGLAS while who stimulation, (4) touching, displays years age, sexual was four was so mental- like, ly automatically affection and the deficient that he could not consent to issue, whether or not there is an effort such deviate sexual conduct. opponent im- of such witness to *3 peach on the basis of a lack of such day On or about the January, 3rd of capacity. presence The of that issue County, in Madison State of Indi- justifies permitting the court some ana, ROBERT DWAYNE did DOUGLAS accrediting of the child witness in the fondling touching submit to of ROB- teachers, opinions parents, form from of penis ERT DWAYNE DOUGLAS' having adequate experience and others MR., age child who is under the of child, prone that the child is not (12) years twelve with the intent to exaggerate to or fantasize about sexual satisfy arouse or the sexual desire of opinions matters. Such ROBERT DWAYNE DOUGLAS. will facilitate an original credibility assessment of the Both counts touching refer to the of fact, child the of long they trier so as Douglas' penis by during MR. Neither do not take the direct "I believe form of investigation the during of the incident nor story", my opinion the child's or "In any the trial was there allega- indication or the child is the truth". tion touching fondling or had oc- added.) {(emphasis Lawrence v. State curred single other than the touching of (1984), Ind., It is Douglas' penis by M.R.'s mouth. Further- permissible molesting in child cases to more, if the state's intention proper- was to question regarding objec an ly allege supporting fondling facts the might charge offense, tive indications that the child factually be fa as a included bricating greater story objective or offense charged observa should have been as deviate tions of the child's sexual conduct under behavior which would lend credence testimony. statute, to the child's which eriminalizes all children, against sexual acts deviate sexual Nevertheless, ultimate factual determi touching conduct as well as fondling. or actually nation of whether the incident oc 35-42-4-8(a) (b). See IND.CODE curred should be made the trier of fact. To admit testimony appellant's such over jeopardy We do not reach the double objection was reversible error and entitles convictions, however, issue in these since appellant ato new trial. supporting evidence one of the
Finally, Douglas challenges clearly was applicable sufficien- insufficient. The cy supporting of the evidence section of the his conviction criminal deviate conduct stat- for criminal deviate conduct and ute, 85-42-4-2, child mo- IC Douglas under which charged, provides: was lesting. person A knowingly who intentionally or charging The ap- instrument this case person causes perform another or sub-
pears to be an attempt innovative to cir- mit to deviate sexual conduct when: prohibition cumvent the constitutional of jeopardy by double charging appellant (8) person mentally the other is so dis-
twice for the
same offense.
abled or deficient that consent to the
charged with criminal deviate conduct and
conduct
given;
cannot be
erimi-
commits
molesting.
alleged
child
The information
conduct,
nal
felony.
deviate
a Class B
pertinent part:
day
On or about
January,
Deviate sexual
8rd
of
conduct is defined
IC
1983, in
County,
Madison
State of Indi- 35-41-1-2
gratification
as "an act of sexual
ana, ROBERT DWAYNE DOUGLAS did involving
organ
person
a sex
of one
and the
knowingly cause M.R. to submit to devi-
or
person."
mouth
anus of another
The
conduct,
"mentally
term
deficient" as
ate
place
in the
sexual
to-wit:
M.R.'s
mouth on
penis
of
charging
ROBERT
information is not defined. Web-
College
Dictionary,
Edi-
(a)
ster's New World
who,
person
A
with a child under
(12)
years
twelve
age, performs
or
deficiency"
defines "mental
as:
tion
submits to sexual intercourse or deviate
lack of some mental function or func-
sexual
conduct commits child
individual,
present
in the normal
tions
However,
felony.
a Class B
the offense
congenital
subnormality
intelligence;
is a
A felony
Class
if it is
committed
amentia;
feeble-mindedness;
ranges
it
using
threatening
or
deadly
the use of
idiocy moronity.
from
force, or while armed with
deadly
In order
to convict
weapon, or if it
bodily
results
serious
required
prove
this crime the state was
injury.
mentally
the victim was
disabled or defi
(b)
person who,
with a child under
cient. The evidence at trial indicated that
(12) years
age,
twelve
performs
or
average intelligence
MR. was of
and was
any fondling
submits to
or touching, of
*4
mentally
any
not
in
disabled or deficient
person,
either the child or the older
with
way.
interpret
"mentally
To
the words
intent to
satisfy
arouse or to
the sexual
or
disabled
deficient" to include children of
desires of either the child or the older
intelligence
normal
is unwarranted. The
person,
commits child
a Class
prohibits
rule of strict construction
us from
However,
felony.
C
the offense is a
enlarging a
beyond
criminal statute
the fair
felony
if
by using
Class
it is committed
meaning
language
of the
used. Witte v.
threatening
force,
deadly
or
the use of
or
(1951),
485,
680,
Dowd
280 Ind.
deadly
while armed with a
weapon.
Moreover,
duty
it is our
to construe charged
(b)
under section
legislative
according
enactments
to the nat
argues
the statute. He
the state failed to
ural and
import
most obvious
of the lan
prove
touching
a
fondling
or
had occurred
guage,
resorting
without
to forced con
single oral-genital
other than the
contact of
purpose
structions for the
limiting
of either
fellatio.
extending
operations.
or
their
State v.
Use of the hands is not an essen
(1918),
648,
Fairbanks
187 Ind.
115 N.E.
touching
fondling.
tial element of
or
See
plain
ordinary meaning
769. The
and
(1981),
Ind.App.,
v.
Owens
State
424
"mentally
the words
disabled or deficient"
Oral-genital
N.E.2d 169.
contact
inis
itself
intelligence
is subnormal
or mental disease
touching
fondling
person,
a
or
of a
thus
or defect. Youth alone cannot be con
prove
fellatio
evidence of
was sufficient
sidered a mental defect. The state failed
note,
touching
a
had occurred. We
how
prove
the crucial element of mental infir
ever,
if
initially
the state had
filed
mity,
Douglas'
thus
conviction for criminal both the deviate sexual conduct and touch
deviate conduct must be reversed. Since
ing
fondling charges
or
under
we
insufficiency
reverse for
of the evi
statute,
molesting
fondling
charge
dence, Douglas may not be retried on this
factually
a
would have been
included lesser
(1978),
count. See Burks v. United States
offense of the crime of deviate sexual con
1, 15-16,
2141, 2149-2150,
487 U.S.
98 S.Ct.
duct,
only
single
since
a
sexual act had
1;
(1980),
57 L.Ed.2d
274
Webster
State
Ind.App.,
(1982),
occurred. See Lechner v. State
668,
Ind.
remaining charge of child opinion. in new accordance with this touching fondling or unless find the we evidence was insufficient for conviction. MILLER, J., concurs. molesting statute, CONOVER, J., The child IC 35-42-4- dissents with attached
3, provides pertinent part: opinion. CONOVER, Judge, concurring part the trial immediately court properly and dissenting part. and put the proper evidence its context: jury, course, ... The may accept or I part concur in and in part. dissent reject any this or opinion, other and it is (a) agree I power this court has no jury which ultimately will decide who review actions taken Supreme our telling is the truth and who isn't telling Court, (b) the trial court did not err objection truth. The is denied. The obeying Supreme Court's writ of man- may question. answer the damus, (c) and the evidence was insuffi- (R. 648-644). The court's instruction prove cient to deficiency mental or dis- sufficient to cure error in the admis- ability element of IND.CODE 835-42-4- sion of this evidence. 2(a)(8). Next, after consideration of the Further, charging information, both before and after she statutory sec- testi- fied the the truth in tions, her Ind., and Smith v. State opinion, presented, she alia, agree N.E.2d I inter a conviction on detailed complete and reconstruction of her contacts both presents jeopardy double victim, problem diagnosis which is our resolved determi- treat- him, nation the evidence was insufficient to ment of sus- criteria she con- sidered evaluating tain when the unlawful events charge. deviate conduct related child victims Finally, agree concerning I sex complained the acts here offenses. fondling constitute under the child molest Although he object continued to to ad- ing statute, 85-42-4-8(b). IND.CODE (R. mission 644) of the statement *5 request did not disagree, however, I other curative mea- conclusion sure. sought He necessary new no mistrial. expert because the He thor- oughly (R. 646-658) opinion testified in her cross-examined the four- and re- year-old telling (R. 663-664) the truth. At cross-examined wit- inquiries ness. His seeking most, included this was harmless error. opinions concerning the effects of the un- (1984), In Ind., Lawrence v. State 464 family situation, common age victim's 928, N.E.2d at Supreme 925 our Court said dependence upon his mother. If this by way of obiter testimony dicta the of an error, was it was harmless. expert witness could not take the direct I form would affirm of a statement opinion con- a child victim viection. the truth. The rationale
for the rule is well known and oft-stated: giving opinion testimony concerning
the truth of a prov- statement invades the
ince of the trier Lawrence, of fact. In expert's testimony opinion did not include prohibited direct opinion. statement of NINE, Jr., Robert Lee Appellant Here, expert's testimony was so (Plaintiff Below), phrased. was, Because it the majority re- verses. Indiana, STATE of Appellee contexts, In however, other Supreme our (Defendant Below). Court prompt has decided admonition or No. 4-1284A360. other curative measures are sufficient to cure protect error and a defend- Court Appeals Indiana, rights. See, ant's eg., Johnson v. State Fourth District. (1985), Ind., 892, 904; 472 N.E.2d Holland 30, Oct. 1985. (1988), Ind., v. State 409, 412; 454 N.E.2d Rehearing Denied Dec. (1983), Dresser Ind., v. State 454 N.E.2d 406, 408; (1982), Ind., Barnes v. State 2835,238; N.E.2d Ballard v. State Ind., 482, 808. Here