*1 duties to oversee township trustees as an poor. township trustee serves The HODGES, Appellant, Thomas committee and management advisor (Defendant below), carrying in out its assists the committee management committee then duties. The complete audit of the trustees conducts a Indiana, Appellee, STATE operations the internal
office to determine below). (Plaintiff economical and finan- of the office and its No. 885 S 342. for practices. cial It establishes standards relief, payment of eligibility poor for Supreme Court of Indiana. services, claims, leases or contracts for capital expenditures, agreements, rental 14, June necessary Pursuant to and all other areas. 12-2-14-24 there is also established IC board, appoint-
township poor relief control super- governor, duty
ed with township in the administra- trustee
vise management poor
tion of relief. When the financial, completed has
committee efficiency economy, and audits
compliance, 12-2-14-11, manage-
required by IC report makes a to the con-
ment committee report submitting plan and its
trol board sections, Succeeding
to the control board. 12-2-14-28, ~29, -80, pro- -81 then
IC and control board
vide for the interaction of the county contemplating the
and the council
adoption plan by county of a council for in poor
the continuation of relief to those
need and the settlement of the financial township
difficulties of the until the town- again is re-
ship has become stable and
moved from the status of a controlled Thus,
township because of its distress.
township might in be a situation manage-
compared receivership in that to a left to the discre-
ment and control is not might otherwise be
tion of the trustee that position continuing to incur obli-
gations county council must satis- position
fy. county council is adopted upon
through plan its own or one puts
submission of the control board knowledge need
in full and control of the payment recipi- poor relief and its vendors,
ents, any necessary re- other expenditures. lated
The trial court is affirmed.
SHEPARD, C.J., DeBRULER, JJ., DICKSON, concur.
GIVAN *4 Carpenter,
Susan K. Defender, Public Gardner, Deputy Defender, C.H. Public In- dianapolis, appellant. for Linley Pearson, Gen., E. Atty. Gary Da- Secrest, mon Deputy Atty. Gen., Indianapo- lis, appellee.
PIVARNIK, Justice. 8, 1985,
On March
Defendant-Appellant
Hodges
Thomas
guilty
was found
by jury
in
Tippecanoe
County Superior Court of
two counts
molesting,
of child
as class C
felonies, and two counts of child molesting,
felonies,.
as class B
also found
Hodges to be an habitual offender. The
court
Hodges
(10)
sentenced
years
to ten
on each of the class B felonies and to five
(5) years on each of the class C felonies.
concurrently.
The evidence most favorable to
ver-
to run
The sentences were
subsequently enhanced
Hodges
The sentence was
dict
committed
below shows
T.S.,
molesting
step-daughter.
on
his
child
(80)
thirty
years due to the
habitual
Using
years old at trial.
T.S. was five
appeals directly
finding. Hodges
offender
dolls,
anatomically
she related in
correct
raising
following issues:
this
court
Hodges
had touched
her own words
by deny-
the trial court erred
1. whether
in
legs
put
penis
his
her between
ing Hodges' Motion to Dismiss two new
testified she had informed
her mouth. T.S.
joined
original
charges which were
with
Hodges,
mother
her mother. Marsha
T.S.'s
trial;
charges for
said,
wife,
testified T.S. had
finding
the trial court erred
2. whether
31, 1984,
August
Hodges
had
on
victim, T.S.,
years
a child under
Hodges
her. Marsha
also said
touched
age, competent
testify;
August
she had
that on
overheard
"no,
telling mommy,"
I'm
the trial court erred
allow- T.S. tell
3. whether
RS.,
and T.S. and
child while she was downstairs
ing
testimony
another
present-
victim,
upstairs.
were
The State
depraved sexual instinet
under the
depraved
instinct
ed evidence of
sexual
rule;
R.S.,
through
12-year-old
previously
erred in overrul-
4. whether the trial court
neighbor Hodges,
who testified
to,
Hodges' objections
denying
ing
and on one
had touched her breasts twice
testimony of victim
motion to strike the
pants
reached in her
of those occasions
T.S.,
vagueness
to the dates
based on
*5
past
Hodges
testified
just
her navel. R.S.
was to have occurred
when the molestation
make love to her if
said he would want to
capacity;
age
and intellectual
and
years
5 or 6
older.
Judith
she were
5.
the trial court erred
admit-
whether
Anderson,
psychologist, and Elaine
a child
prior
ting into evidence two of T.S.'s
state- Stahl,
county child
a case worker with the
Hodges' hearsay objections;
ments over
services,
protective
testified as to state-
counseling
Following
ments and
with T.S.
court erred in admit-
6. whether the trial
examination, Hodges made an
polygraph
ting Hodges' incriminating statement over
police. The
incriminating statement to the
coercion;
his claim of
recording
statement was
tape
of that
erred in allow-
7. whether the trial court
jury. Hodges presented no
played for the
ing the introduction of a statement made
evidence at trial.
by
Hodges
objection
Marsha
over
irrelevant;
cumulative and
it was
I
in re-
8. whether the trial court erred
1984,
October,
Hodges
charged
In
was
2;
fusing Hodges' tendered instruction no.
molesting,
three counts of child
under
with
no. S-5097. Trial was set for March
cause
giving
court erred in
9. whether the trial
13,
5,
February
the court's final instruction no.
over
1985. On
an addition-
consisting
filed
of an informa-
al count was
objection;
1,
tion of
offender. On March
habitual
giving
erred in
10. whether the trial court
1985,
filed four additional counts
the State
22,
instructions nos. 20 and
the court's final
S-5219,
molesting, under cause no.
of child
objection;
over
I and II of which involved the same
Counts
during
the trial court erred
11. whether
time,
At
victim.
the same
State moved
admitting
phase of the trial in
the habitual
charges
In
join all of the
for trial.
evidence,
objection, certified
into
over
judicial economy and since
interest of
convictions;
Hodges' prior
records
II
type,
Counts I and
were of the same
permitted pursuant
during
joinder
court erred
their
12. whether the trial
35-84-1-9(a)(1),
refusing
resulting in
phase of trial in
Ind.Code
the habitual
§
verdict,
being charged
Hodges
in re-
with five counts
accept
jury's first
6,
molesting against
March
child
T.S. On
quiring
to return to their delibera-
1985, Hodges filed a Motion to Dismiss the
the verdict.
tions to correct
S-5219,
counts
from cause no.
Hodges
on the
claims that because the two infor-
grounds
insufficiently
the information
de- mations are
identical,
he could not distin
by
scribed the offense
alleging specif-
not
guish one count
Hodges
from the other.
offense,
ic date of
prose-
that the new
argues
type
charge
this
denies his con
brought
ecutionhad not
timely
been
in a
rights
stitutional
to be informed of the
manner because the offenses occurred
nature and cause of the accusations and to
years.
within the last 2%
The court denied
by
be assisted
counsel.
asserts
the motion and
proceeded,
the trial
that because the
period
broad,
time
was so
prevented
he was
presenting
from
certain
Hodges argues the trial court erred
defenses such as an
insanity
alibi
an
by joining Counts I
II
from cause no.
However,
defense.
a similar
speci
lack of
original charges
S-5219 to the
for trial.
ficity as to time
approved
has been
in Mer
argues
first
the two counts from
209-12,
ry
199,
Ind.App.
cause no. S-5219 should have been dis
249, 256-57,
35 N.E.2d
trans. denied.
3
missed
they
filed,
because
were not timely
See also Hoehn v. State
Ind.App.,
pursuant
85-34-1-4(a)(8).
Ind.Code §
472 N.E.2d
However, here he
argu
asserts a different
ment than the
charges
staleness of the
If
joined
offenses are
solely be
originally argued in his Motion to Dismiss.
they
cause
are of same or similar charac
argues
He
here that he was not afforded
ter, a defendant has an
right
automatic
adequate
prepare
time to
a defense to the
have the counts be tried separately, and the
charges.
two new
complains
He
he was
court has no
deny
discretion to
the sever
rights
not informed of his
or the nature of
ance
(1985), Ind.,
motion. Abner v. State
charges
against
filed
him because he
1254, 1261;
Hobson v. State
hearing
received no initial
required
(1986), App.,
741, 743;
Ind.
Ind.
Ind.Code 85-83-7-4. Further he asserts
§
Code 35-34-1-11. The burden is on de
§
no omnibus
required
date was set as
timely
fendant to make a
motion for sever
Ind.Code
35-36-8-1.
also ar
§
(1981), Ind.,
ance. Muse v. State
419 N.E.
gues
statute,
joinder
Ind.Code
2d
A defendant waives his
35-84-1-10, contemplates only
join
§
right to
sepa
have similar offenses tried
*6
ing of previously
charges,
filed
not those
rately where he fails
timely
to make
motion
filed at the
joinder
same time as the
mo
1305;
for
severance.
Id. at
Ind.Code
tion.
grounds
As these
were not raised at
35-34-1-9(a)(1), 35-34-1-12(a).
In Hob-
§§
trial nor in
motion to dismiss and son, the
alleged
defendant waived his
error
appear for
appeal,
the first time on
they
of denial of severance of two counts of
are
therefore waived. Cox v. State
child molestation
allegedly
which
were
Ind.,
151, 161;
Beland v. State
joined solely
they
because
were of the
(1985),Ind.,
Hodg
845. If
character,
same or similar
because he did
es felt he needed additional time to face the
not renew his motion for
during
severance
charges,
new
he
duty
was under a
to move
Hobson,
trial.
Hodges argues the two counts in vague ecauseno. S-5219 were so as to Hodges argues the trial court they time of occurrence that finding T.S., failed to state erred in five-year-old the vic tim, competent as a witness. He asserts the offenses certainty, with sufficient required by 35-34-1-2(a)(5) Ind.Code the State failed to statutory overcome the § presumption (6). incompetency of and did not alleged Each count act occurred August from September 1982 to show that T.S. understood she was under a 780 the truth. Children less dures set forth in
compulsion to tell Ind.Code 35-87-4-4 § years may testify ap- if "it were not followed and the than ten old evidence was foundation, proper pears they understand the nature and without was not rele- vant, highly R.S., obligation prejudicial. oath." Ind.Code Ann. and was who of an trial, years 12 old at the time It must be was had (Burns 1986) 34-1-14-5 § neighbor Hodges. of the child knows the difference been a The State shown that the lie, a telling telling the truth and a filed motion admission of evidence between pursuant to Ind.Code 85-87-4-4 and that the child understands he or she is which § sought Hodges' past compulsion tell the truth at trial. to allow evidence of under a minor, 464 sexual conduct with another N.E.2d Jones State R.S., depraved under the instinct sexual rule. 1284. The determination of a child's 35-37-4-4, judge's rape trial Ind.Code shield stat- competency lies within the dis- § ute, judge oppor- has the allows for the introduction of evidence cretion since trial intelligence, past activity of a tunity to the child's witness' sexual with a observe maturity. mandatory pro- defendant and sets forth a demeanor and Peters v. State cedure, (1984), Ind., requires 710. The which a written motion ten N.E.2d days prior proof. presumed determination is valid and trial and an offer of court's specifically requested only will reversed for a manifest abuse State's motion be hearing pursuant and order to Ind.Code 710; Jones, of discretion. Id. at 35-87-4-4(c). questioned R.S. was out- N.E.2d at 1284. § presence side and the trial showing Hodges concedes a court made a determination to allow the T.S. knew the difference between truth testimony Hodges objected of R.S. at trial. lie, argues showing but there was no procedures Ind.Code compul that she realized she was under a strictly thus 35-37-4-4 were not followed § clearly sion to tell the truth. The record denying process. him due contin- requisite inquiries shows the were made of objection ued his when R.S. was called to ability comprehend T.S. to determine her the stand. obligation testify truthfully. her T.S. Hodges argues strictly failed to competency hearing testified at a that she required procedure of Ind.Code follow happen didn't know if she what would 35-387-4-4. First he states the motion § deputy didn't tell the truth and that trial, only days filed five was before when prosecuting attorney say told her to she requires prior days the rule it be filed ten why tell the truth. When asked she would Second, Hodges to trial. claims his counsel truth, had to tell T.S. twice said she questioning prevented from R.S. about know, didn't and said she didn't what know during statement October However, if an oath was. T.S. also said hearing questioning to allow the truth, promised tell the she she would *7 regarding proof the offer of witness be- lie, gets tell the truth and not and that she objection questions cause the to his State's spanked punished for tell and otherwise is Finally, Hodges was sustained. asserts lies, get punished ing but does not for the trial court failed to make an order telling promised the truth. T.S. to tell the stating may what evidence be introduced responses trial disclosed truth at T.S.'s by ques- the State and the nature of the lying she knew the difference between permitted. tions to be When coun- telling the truth and she understood order, requested specific sel the trial Therefore, testify truthfully. was court stated it did not know what evidence Hodges has failed to show the trial court present. Thus, Hodg- the State intended to allowing by its discretion T.S. to abused argues the motion es should have been age. testify due to her tender provisions rape denied because the strictly shield statute were not followed. III Hodges During arguments claims the court erred in trial on the motion, allowing testimony proce- suggested of R.S. as the the State the motion
781 was made as precaution, and doubted T.S., examination of the victim. He claims whether such a motion required was since her lack of specificity as to the dates of the the evidence was to be offered under the alleged acts, and age her and intellectual depraved sexual instinct rule. The State capacity, denied him right to confront contends, now agree, and we the mo and cross-examine her. Further, T.S. said tion was unnecessary. Ind.Code Hodges had had intercourse with her. 35-37-4-4 is protection § for the of sex However, Dr. Weller who examined her victims, crime not offenders. saw no evidence of trauma or intercourse. The statute has no application when the State attempts argues here that T.S.'s allegations to introduce evidence of a defendant's de were so devoid of detail as to make impos- praved sexual instinct. Brackens v. State sible any attempt on cross-examination to (1985),Ind., 536, 480 539; N.E.2d Jarrett v. discredit them. Because T.S. could not State 1097, 1098- specify time, order, or location of the 99. As the State's motion and hearing offenses, Hodges claims he was denied his thereon were unnecessary, no reversible right constitutional confrontation error was committed. through effective cross-examination. Hodges further claims the evi right to confront witnesses dence prejudicial, probative no value includes right full, to a adequate, and in establishing depraved instinct, sexual effective cross-examination. It is funda and further asserts there was no evidence mental and essential to a fair trial. Clark of an intent to arouse or satisfy sexual (1985), Ind., N.E.2d desires required Ind.Code citing Lagenour v. State 268 Ind. 35-42-4-3(d). § The evidence admitted un Here, N.E.2d 475. defense coun der depraved sexual instinct rule in sel conducted a thorough cross-examina cluded testimony by R.S. had tion. questioned T.S. was about the loca once reached his up hand her shirt tion, time sequence of the molesting. touched breast, her and that on another She testified the incidents occurred at both occasion had tickled her and up reached of her residences in Dayton and Lafayette, shirt to her breasts and down her shorts Indiana, but could not specify the time or "a little bit past my belly button". She order of the Thus, offenses. the defense testified that on another occasion Hodges had a chance exploit the vagueness and said he would like to have sex with her if uncertainty of T.S.'s testimony. Hodges she were 5 years or 6 older. She also does explain not how his cross-examination acknowledged she did say not her breasts would have been more effective had T.S. were touched Hodges' hand was in her been time, definite as to the sequence, and pants in her initial statement police. locations of the molesting. Therefore, we Acts used to depraved show a sexual in say cannot that he was denied right stinct need not be identical to the crime full, adequate and effective cross-examina which a charged. defendant is It is suffi tion. T.S.'s uncertainty was ques more a cient if the same sexual instinct is involved. tion of credibility than one of admissibility. Jarrett, 465 N.E.2d Here, at 1100. previous acts were similar V enough to the charged crimes to merit in Hodges argues the court erred in admit- troduction under depraved sexual in ting out-of-court statements made T.S. *8 stinct rule. Both involved a minor as a Judy to Anderson and Stahl, Elaine over victim and were similar in proxim time and Hodges' hearsay objections. Judy ity. There was no error in the introduction Anderson, T.S.'s child psychologist, related of this evidence. T.S.'s version of the offenses as told to her over several Stahl, sessions. Elaine a case- IV worker with Tippecanoe the Child Protec- Hodges argues the trial court erred in Services, tive was called into T.S.'s by case overruling his motion to strike the direct police. Stahl interviewed T.S. about tape recording. the offenses and made a VI permitted At to relate T.S.'s trial Stahl was Hodges challenges the admission of an tape recording was ad- comments and the gave incriminating po- statement he to the played. Hodges claims the mitted and lice, claiming prod- the statement was the introduced, hearsay inadmissible un- uct of coercion. The State over statements were objection, tape recording transcrip- 55, and (1975), 263 Ind. der Patterson v. State by Hodges cross-examinga- tion of a statement made since, 482, 324 N.E.22d on Hodges Payne. Detective David moved to tion, testified she did not remember T.S. suppress hearing and a evidence was Hodges talking anyone what had about jury's presence. conducted out of the Dur- done to her. ing suppression hearing it was estab- Hodges lished that to the came Sheriff's The Patterson rule allows Department, rights, was advised of his prior statements where the admission of gave taped in- statement which was not present the asserter is a witness who is criminating. Payne Detective then asked regarding for cross-examination available examination, Hodges polygraph to take a prior statement. v. State Watkins given which was within the hour Detec- (1983), Ind., The 446 N.E.2d 960. Hodges Pope. polygraph, tive After the statement is not admissible when wit rights gave was reminded of his and then making no ness denies the statement has second, taped incrimi- statement which was it, recollection because the witness nating. Payne testified that Detective for cross-examination con "unavailable" always go, free to was never cerning the statement. Id. at 960. In handcuffed, stop and never asked to Watkins, we noted that the trial court is to attorney. Hodg- statement or to retain an concerning questions resolve whether a informed he could es testified he was never particular witness has fact denied mak Hodges also testified that he felt leave. ing the statement or has asserted a loss of pressured polygraph and that to take the memory as to the statement. We indicated he indicated to the officers he did not want merely the trial court was not to look at polygraph. said Detec- to take pieces testimony isolated bits but Pope pressured giving him into tive judgment rather was to base its on the second statement. The trial court admitted testimony of total the witness. Holmes v. the evidence. (1985), Ind., admissibility of a custodial determining, statement is controlled Hodges argues that because T.S. circumstances, totality from the acknowledge prior did not statements voluntarily. or not it was made whether to Anderson and Stahl and she did not questions appeal We review these on as we statement, taped remember sufficiency do matters. We do not other was unable to cross-examine T.S. as to the judge credibility of witnesses nor re require statements and thus the Patterson Rather, weigh the evidence. we determine argument ments were not met. probative there is substantial evi whether testimony relies on cross-examination T.S.'s support finding. the trial court's dence stated she not which T.S. did remember Lyons v. State
talking anyone allegations. about her 816; Creasy Ind.App., v. State examination, However, on direct T.S. ac Hodges argues illegal N.E.2d 577. he was knowledged telling the of Stahl about ly polygraph held until he took the test and fenses, although she claimed to remember reasonably asserts he believed he was not only she told Stahl. On some what despite He free to leave. asserts that examination, acknowledged redirect T.S. rights, fact he was read his Miranda Thus, stop questioning him telling Anderson about police failed to when the offense. acknowledgments by the record contains questioned. he did not he said want be *9 However, Hodges rights supporting judge's finding. was advised of his T.S.
783 and acknowledged that he both understood A. Was there a you time that reported rights. Hodges waived those voluntar- your husband Dayton to a Town mar- ily continued to talk with the officers and shall raped because he you? questions. answer their Hodges' Also alle- A. Yes. gations of coercion are by contradicted Q. When was that? State's showing evidence. No is made that A. In December about three weeks judgment the court's was an abuse of dis- from before Christmas. eretion, or that the court's decision was not Q. And that was 19837 supported by sufficient evidence. The cir- A. Yes. cumstances, by court, as found the trial fully demonstrate a informed and volun- Hodges argued at trial rape that the com-
tary statement. ment was irrelevant placed him in grave peril. The responded State
VII Hodges had the opportunity to review the Hodges challenges the trial court's ad- transcript and could then objected have mission tape of a recording and transcrip- rape comment, but lodge chose to only tion of a statement Hodges, Marsha relevancy broad objection. The court de- wife, which was during introduced the tes- nied the mistrial. timony of Payne. Detective After the ex- In determining whether an error in the hibits were evidence, introduced into Hodg- introduction of evidence warrants a rever es moved to strike the exhibits and moved sal, this court must assess probable for a Hodges mistrial. claims that because impact of challenged evidence on the Hodges Marsha already had testified to jury. Williams v. Ind., State 426 much of the statement, substance of the 662, N.E.2d 671. The brief, reference was was cumulative and therefore irrelevant. Hodges' buried Marsha relation of T.S.'s He further asserts the prej- statement was complaints. rape allegation was not udicial because it contained hearsay allega- explored during Hodges' prior Marsha di tions regarding rape complaint made rect or Also, cross-examination. the evi against Hodges by his wife. dence of Hodges' guilt was overwhelming, established
An the testimony of evidentiary ruling is Marsha re Hodges, T.S., Hodges' viewed only for an own abuse of statement. discretion. In his statement (1985), Ind., Wisehart v. he admitted to State several instances of (1986) cert. molestation of 1189, denied 476 T.S. We also U.S. that, note request, 106 at his S.Ct. 91 references L.Ed.2d 556. to his Evidence relationship with which is his wife were merely not read to grounds cumulative is not jury. agree We reversal. with (1984),Ind., Watkins that the v. State evidence 460 should not N.E.2d have been 515. This admitted court will re However, into verse evidence. judgment view of only when an error unemphasized prejudice causes nature of the to the comment and defendant. Wise other tending evidence Hodges' show hart, 957; 484 Watkins, N.E.2d at guilt, we find N.E.2d there is no Hodges' at 515. substantial likeli Marsha statement hood that the detailed evidence complaints, some of contributed to the Hodges' T.S.'s verdict, and we deem it to be have been reactions complaints, and corrobo harmless. Mulligan See Hodges' rated Marsha v. prior State testimony. 1309, 1313; The statement was Maiden relevant and . (1985), Ind., has failed to N.E.2d 278 any prejudice show resulting from Thus, the its Hodges' admission. ob
jection to the admission of the evidence and VIII motion to strike were properly overruled. Hodges claims the trial court erred in
Hodges moved for a mistrial on refusing give his tendered final instruc- following basis of the excerpt However, from tion no. 2. sign failed to Marsha statement: tendered, the instruction as contravening *10 784 thing brought about, as effective at his led to Ind.Code 85-87-2-2 which it § 6-8,
trial,
appear
on March
1985.
improba
which occurred
would
... unnatural or
to
Ind.Code
State, (1975)
amendment
in
Pieper
ble
itself""
v.
35-37-2-2(6)(C) allowing
signed
580, 585,
cover
196, 199,
262 Ind.
321 N.E.2d
§
approved by
not
the
sheet to suffice was
Robbins, (1943)
quoting State v.
221 Ind.
8,
legislature
April
until
1985. The law
125,
691,
Thus,
46 N.E.2d
695.
the evi
existing
Hodges'
the time of
trial re
at
dence lends
testimony
credence to the
of
signature
quired strict observance of
prosecution
might
otherwise be
appellate
requirement,
penalty
under
of
State,
(1964)
disbelieved. Lamar v.
245
(1986),
104, 195
Phillips v.
496
waiver.
State
Ind.
N.E.2d 98.
(1984),
87, 89-90; Harding
N.E.2d
v. State
446,
tive weigh testimony ed if the does not dling by you only R.S. is be considered of R.S. It is not error to refuse an instruc credibility on the issue of the of T.S. fully accurately tion which does not reviewing concerning In an issue the refus- state the law and would tend to mislead or instruction, al of a tendered this con- court jury. confuse the Harding, 457 N.E.2d at siders whether the instruction is a correct may As this instruction have con law, statement of the whether there is evi- jury, fused the no error in was committed support giving dence of the instruc- refusing it. tion, and whether the substance of the ten- déred instruction is covered other in- IX given. structions which were Smith (1984), Ind., 512, 517; Hodges claims the trial court erred (1981), Ind.,
Richey v. State giving in final instruction no. 18 over his 389, objection prejudicial that it was a and incor rect statement law. The instruction purpose asserts of read: testimony, offered as R.S.'s evidence instinct, Hodges' lim depraved sexual presumed a defendant is While law boistering credibility ited to of T.S. and to be innocent of a crime until the con- directly was inadmissible to be used to trary is established the evidence to guilt, citing Grey establish his v. State degree certainty you ju- 273 Ind. 404 N.E.32d 1348. guilt beyond rors are convinced of The State counters that instruc doubt, reasonable the rule of law which properly tion was refused as it is not an presumes the defendant to be innocent accurate statement of the law and would requires the State to establish be- only jury. explana confused the In have yond every a reasonable doubt material depraved tion of the basis for the sexual in the indictment is not in- fact averred rule, instinct this court stated: actually tended to shield those who are guilty just punishment; exception from and merited
The basis for this is that rather, provision a humane prosecutions depraved acts of law "... protection prosecuting likely is not which is intended for the witness be believed, innocent, 'standing guard, since the evidence as far as can, entirely any- agencies against alone and unconnected human with convie- prove beyond If the State failed un- innocent and are tion of those who *11 every essential element crime. reasonable doubt accused of justly charged, if it failed to crimes or of the confus- this instruction was Hodges claims every prove beyond a reasonable doubt permit- in that it misstated the law ing and any of lesser crimes essential element presumption disregard the jury ted the to charged, or if in the crimes included is premise its innocence. He asserts of your innocence and the in mind a reasonable presumption of remains that the there different- apply guilt, you standard doubt Defendant's reasonable about the doubt innocent, guilty. which him not guilty than to the must find ly to the jury until by the not be considered should 15 read: Final instruction no. is reached because an actual verdict term, doubt" as used "reasonable However, our presumption of innocence. degree proof the of in connection with does challenged instruction reading of the person a required by law to convict pre- disregard the permit juror not of a criminal charged with commission subjectively if he sumption of innocence offense, and substantial means an actual guilty. merely is It the defendant believes fair in the mind after a doubt that arises only presump- the rule is emphasizes that weighing impartial consideration construction, that can be legal one tion of in of all the evidence and circumstances rebutted. every doubt is a reason- the case. Not lie concerning jury instructions Decisions can be In order that there able one. court. of the trial within the discretion doubt, upon some it must be based such N.E.2d Travis v. State evidence or lack arising out of the reason unless the court not reverse 345. This will (essential) or concerning the of evidence whole, that, the is taken as a error such case. You elements of the (necessary) the law or charge to the misstates whim, specula- upon mere may not act jury. Id. at 345. otherwise misleads the you may not tion, guess, surmise and or ref- considered with Instructions are to be guilt. possibility mere of upon a convict entirety, other and as an erence to each guilty Defendant you can find the Before will not particular in a instruction and error in the case must charged, evidence as the error is of justify a reversal unless the firm such a your own minds produce charge the such a nature that whole freely be guilt you would belief of jury as part forms a misleads the which it any belief willing upon act law of the case. Daniels the impor- concern and highest matter of the 274 Ind. interest. your own dearest tance to applies doubt This rule on reasonable Here, given the other instructions individually; your and it is you to each of presumption of inno- fully stated the court long as refuse to convict personal duty to Final in- burden. and the State's cence as to the doubt you have a reasonable as no. 12 read: struction likewise, charged; guilt as Defendants case, presume that you must In this duty to vote for conviec- your personal is innocent, pre- and this Defendant is beyond long you are convinced as tion accompanies the innocence sumption of of the Defendant's doubt a reasonable step through the trial step by Defendant charged. guilt as proven by the evi- has until the State 17 read: instruction no. Final guilty dence, is be- that the Defendant judges the sole you are jurors, doubt. As yond a reasonable credibility of the and the evidence to be presumed the Defendant Since determining testify. In who witnesses innocent, prove or required not he is given weight or credit to be anything. The real burden explain in- or an exhibit testimony of a witness a reasonable doubt guilt beyond proving following troduced, may take the you on the throughout the entire trial rests in to consideration. matters State. may You consider the opportunity and Final Instruction No. 20 capacity of a witness for observing Members of jury, evidence has or recalling the matters about which he been introduced in this case to you assist
or she has testified and the conduct and in determining the facts and I have en- demeanor of such witness while testify- deavored to you advise as to applica- ing. may You consider ble prejudice law. You are of a now confronted with duty of pronouncing guilt witness, if any shown, inno- be his or cence of the defendant. I submit interest or lack of interest in the results you case to with confidence you will of the trial. may You consider prob- *12 discharge this duty, without being moved ability or improbability of the testimony by an undue demand for by conviction given, in view of evidence, other facts or the State or swayed from perform- the proven circumstances to your satisfac- ance your of duty by any appeal undue during tion Also, the trial you may your to sympathy. Your duty demands consider whether or not the testimony of you that be equally just to the Defendant a witness has been corroborated or con- and the State. You should bear in mind tradicted other evidence introduced in that the liberty or property ofan accused the trial you that have found to be credi- should not be taken from him by careless bile. You weigh should evidence, the and or judgment, but, inconsiderate if after a give credit to the testimony by consider- careful consideration of the evidence and ing it and relating your it to law, own experi- you are satisfied as to the Defend- and guilt observations in the ant's ordinary beyond a doubt, reasonable ences you and customary should your affairs return your lives. verdict accord- ingly. citizens, As charged with duty the you If find that there are conflicts in of assisting the Courts in the administra- evidence, the you should first attempt to justice, tion of you put should any aside reconcile conflicts, these you can, if on public consideration of approval or disap- the theory that each witness has testified proval, carefully considering the evidence truthfully. However, if such conflicts in law, and the and return into Court such the evidence cannot reconciled, be then you verdict as believe to just. be you, jurors, as are the judges exclusive of the credibility witnesses, of the and Final Instruction No. 22 weight the you give will to his or her Law of the State of provides Indiana and, testimony; your is within province you that jurors are to only determine to determine whom you will believe and question the guilt or innocence of the you whom will disbelieve. defendant. The matter of assessing a These penalty instructions read as left solely a whole the show court. There- fore, possible the jury that the was forms of properly your and fully in- verdict are as "We, follows: the jury structed on the find presumption the of innocence defendant, , guilty of the offense of and the State's burden. Therefore,, there was no error in giving final instruction no. ? OR "We, the jury find defendant, , not guilty of the offense of
X
Hodges claims the trial court erred Hodges asserts
these instructions were
giving
final instructions nos. 20 and 22 confusing jury
and misstated over
objection
that they were confusing
law. He claims
that
instructing the
as to
proper
burden
proof
and stat
jury
duty
their
was to find whether the
ed,
part,
to the jury
"you
that
are now Defendant was guilty
innocent,
or
confronted with
duty
of pronouncing
placed
court
proof
burden of
on Hodges
guilt
or innocence of the Defendant." which the law
require.
does not
jury
The
The two instructions are:
only
to determine whether the State
stand,
in the
by proving
dict should
alternative
met its
had
burden
mistrial,
for a
which the
court
beyond
reasonable doubt. Our moved
trial
guilty
cor-
challenged
jury
does overruled.
returned with its
reading of the
instructions
verdict
struck the handwrit-
jury’s
with the
function.
rected
which
not show conflict
original
lan-
jury
phrase
must
ten
recited
Instruction no. 20 states
finding
guilt
guage
Hodges to be
habitual
the defendant’s
“a
“satisfied as to
be
again
in-
criminal.”
moved for a mis-
beyond a
doubt.” Neither
reasonable
ground
no alter-
places a
on
trial on the additional
struction
burden
guilty
Final
verdict form of not
was sent
prove his innocence.
instructions
native
12, 13, 15, 16,
jury
jury
fully explain
and 17
to the
room when the
returned
nos.
the verdict. The trial court over-
presumption of innocence and the State’s
correct
whole,
charge
as a
ruled the motion. The verdict form read:
burden. Taken
accurately
responsi-
of its
advised
We,
having
the jury,
heretofore found
bility
parties.
the burdens
Hodges,
the defendant Thomas
C.
did commit the crime
crimes of child
XI
molesting in
contrary
# S-5097
Cause
erred
Hodges claims the trial court
*13
35-42-4-3(b)
Indiana Code
and/or 35-42-
prior
admitting
by
certified records of
3(a). Do
further find
follows:
now
10, 11, 12,
convictions in
Exhibit’s
State’s
Hodges
prior
did
That Thomas C.
have
during
phase
offender
and
the habitual
of
of two or more
the follow-
convictions
they
and
because
were without relevance
ing unrelated felonies:
Hodges acknowledges
proper foundation.
(X)
guilty (o)
Please check
if
if not
properly
rule that
records
certi
the
official
guilty
of
are
by
fied
the custodian
those records
_1.
day
That on or about the 27th
live witnesses and that
admissible without
con-
December 1974 defendant was
of
applies
a similar rule
to D.O.C. records.
Court,
Montgomery
victed
Circuit
(1984), Ind., 471 N.E.
See Thomas v. State
County,
felo-
Montgomery
Indiana of a
680;
Ind.,
v.
(1984),
Connell State
2d
namely,
degree
of
ny,
the crime
second
44;
701, 707;
Ind.
Ind.R.Tr.P.
burglary.
34-1-17-7.
also concedes
Code §
_2.
day
or about the 16th
That on
fully
challenged
that the
documents were
September, 1977 that the defendant
of
He
this
properly
and
certified.
now asks
Montgomery
in the
was convicted
court to reconsider and reverse its earlier
County
in the
County
of
Circuit Court
decisions and to reverse his convictions.
Montgomery, State
Indiana
This we will not do.
degree burglary, a fel-
crime of second
ony.
XII
jury
the
It is therefore the verdict of
Hodges claims the trial court erred
Hodges is
the
Thomas C.
defendant
during
phase
by
the habitual
the trial
criminal.
a habitual
refusing
accept
jury’s
to
first verdict
the
jury
argues
first
that since the
requiring
to return
deliberate
them
to
forms,
and in
determines the law
proper verdict
criminal cases
further without
facts,
jury’s province
the
denying
based on the
was within
by
his Motion Mistrial
charge on
fac-
phase
reject
the habitual
either
During
acts.
the habitual
those
legal
He
trial,
grounds.
re
asserts that
jury
deliberation the
tual
the
after
here,
law,
jury
judging
the
the
found the
printed
a
the
turned
verdict which struck
words,
criminal”,
apply
not
to him.
do not
substi
law should
We
“is a habitual
party may
A
claim as
phrase,
guilty
reach this issue.
not
tuted the
"is
of the above
giving
instruction unless he
made
error the
of an
felonies.” The alterations were
jury
objects thereto
retires
receipt
On
of this verdict the court
before
hand.
51(C) as
its
Trial Rule
their
was defec
consider
verdict.
jury
informed the
verdict
8(H). adopted in
Rule
did
jury
room for
Criminal
tive and returned them the
timely object
contain-
Hodges objected
the ver- not
to the instruction
correction.
ing the habitual offender verdict form.
trial court and both counsel discussed
Onee instructions
finalized,
are
the trial whether new verdict forms should also be
may
court
properly seek jury
verdict free
sent with
jury.
Defense counsel indi-
from inconsistencies or defects.
cated he
object
would
to new
forms,
verdict
one of which said
jury
finds the defend-
The trial court felt
original
ant not guilty of habitual
Thus,
eriminal.
verdict was defective. If
jury's
verdict is
Hodges cannot now be heard to complain
defective in substance it
proper
is
for the
about the lack of a new
trial
verdict
court to refuse
form.
accept
the verdict
and to send
jury
back for further delib
Concerning the imposition of
erations to have the verdict amended be
the habitual
offender
enhancement,
fore
jury
separate.
members
Patton v.
State notes the record
ambiguous
is
as to
(1971),
State
421, 424,
257 Ind.
which cause number
is affected. The min
cert. denied
405 U.S.
ute entries for cause no. S-5097 state that
92 S.Ct.
ifment
legally
or logically inconsist
DICKSON, JJ., concur.
ent, contradictory or repugnant, 28 LLE.
(1960)
Trials
316
89
§
CJS. Trial
DeBRULER, J., concurs and dissents
496
(1955)
and 500
§§
Indianapolis
with separate opinion.
Newspapers,
Fields,
Inc. v.
(1970) 254
DeBRULER, Justice, concurring and
219,
dis-
Ind.
651,
259 N.E.2d
but the court
senting.
indulges every reasonable presumption
in favor of the legality
jury
verdicts.
Two counts
in cause no. S-5219 were
Indianapolis Newspapers, Inc., supra;
identical. The conduct alleged in both is
Central
Telephone
Union
Co. v. Fehr
the same. The
alleged
conduct
in both is
(1896)
ing,
189,
146 Ind.
N.E.2d alleged that the offense took
charge that Here do May of 1983. we
place or June count, dual single but with
not deal with a of identical form.
counts
I one of these two convie- would reverse S-5219, dismis- under and remand for
tions upon the count which such conviction
sal of I Otherwise concur. was based. Defender, Carpenter, Susan K. Public Tuke, Defender, Deputy India-
M.E. Public napolis, appellant. for Pearson, Gen., Atty. Michael Linley E. Gen., Worden, Atty. India- Deputy Gene napolis, appellee. PIVARNIK, Justice. DIER, Appellant
Michael \ (Defendant below), Dier Defendant-Appellant Michael 6, 1979, with initially charged on December Murder, Robbery, Bur crimes of Indiana, Appellee STATE felony, and glary, of them as a class A each below). (Plaintiff fur felony. D The State Theft as a class charging Dier No. 31S00-8602-CR-166. filed an information ther offender. Follow being an habitual with Supreme of Indiana. Court guilty Dier on all ing trial a found September counts and on June (60) years on sixty Dier to court sentenced (80) years charge, thirty felony murder (80) charge, thirty years on robbery on (4) charge years and four on burglary *15 charge. The court ordered the theft consecutively and served all sentences be (30) adding thirty years for habit after status, Dier to a sentenced ual offender (154) years. fifty-four of one-hundred total the State moved On October prosecutor advised resentence Dier. agree entered into an the court Dier had against one Ben whereby he testified ment prosecutor stated Thomas. The William testimony of incalculable bene Dier's having Thomas convicted fit to the State against him. The State there all counts on Dier's court set aside requested fore further offender and of habitual conviction concurrently be served order his sentence remaining consecutively on the instead of granted the re trial court charges. The offender dismissed the habitual quest and reducing sentence charge, thereby Dier's (30) judge then stated thirty years. The