*1 Finding error, no we affirm the trial
court in things. all
GIVAN, C.J., DEBRULER, HUNT- PRENTICE,
ER and JJ., concur.
Randy HOEHN, Appellant
(Defendant Below), Indiana,
STATE Appellee (Plaintiff Below).
No. 1-784 A 189. Appeals
Court of Indiana,
First District.
Dec. 1984.
Rehearing Denied Feb.
ROBERTSON, Judge. Randy (Hoehn) appeals the deci- sion Posey County finding Court him guilty of child molesting in violation of 85-42-4-8(d). IND.CODE We affirm.
The facts most favorable to judg- ment appellant show that Hoehn was twen- ty-five years old at the time incident, of the that he owned an arcade shop, and bait and that he had friendship a with the twelve- year old victim frequented who the estab- play lishment to games. video In May or June, 1983, Hoehn had the spend victim night with him at his sister's trailer. Dur- ing night, Hoehn supposedly put his hand down the victim's underwear and penis. touched his The victim testified that this was not the first time Hoehn had done such thing, a for put he had his hand down pants the victim's and touched penis his on two occasions as well. appeal,
On Hoehn raises several issues review, for the first of which is that trial court denying erred in his motion to dismiss on the basis that the information insufficiently alleged the date of the of- fense.
The information
filed
the State
alleged the date of the offense May
as
June, 1983.
35-34-1-5(a)
IND.CODE
clear
ly states
that an
may
information
not be
dismissed for failure to specifically state
offense,
the time of the
"where time ...
not of the essence of the offense ..."
essence,
time was not of the
that
is, it was not an element of the offense.
The date of the offense was stated as hav
ing occurred within
period
of limita
tions and
definitely
as
as could be done.
Merry
Ind.App.
199,
jects to was as follows: engaged in similar acts of sexual 1) victim, Gunter, Testimony by "touching". It was thus relevant in show put his hand down he observed Hoehn ing sexual instinet in pants four-year boy. old of a three suggested sexually Hoehn was infatuated *4 2) Testimony by Hoehn's former wife young boys. The clearly with evidence was - wedding night seven-year that on their a alleged related to the offense and relevant boy slept them their bed old with substantiating testimony and toward morning next Hoehn told his victim. We believe the evidence falls her the wife that sexual intercourse with squarely exception and within above "special" had been because before also, was therefore admissible. Mont See boy's he had held the hand. State, (1980) 544, v. 274 Ind. 412 gomery
3) Testimony by fourteen-year old Mike
(The supreme
N.E.2d 793
court of this
grabbed
"pri-
his
that Hoehn had
Creek
state has indicated that evidence of
down,
vates",
him
un-
pinned
as well as
sexual acts of a defendant to show a de
zipped
pants,
his
and held ice on his
praved sexual instinct must involve similar
prior occasions.
"'privates" on several
offenses.)
4)
seven-year old
Photographs of a
pho
contends that the
Hoehn also
friend,
depicted
of which
him with an
one
tographs
upon
improper
were admitted
an
erection.
photograph
foundation. A
is relevant if a
439,
State, (1980) 273 Ind.
404
Grey v.
virtually
permitted
witness is
describe
1348,
suceintly set forth
1352 has
picture depicts. Murphy
which
regarding
in Indiana
this issue:
the rule
State, (1977)
184,
Ind.
"standing alone and
unconnected
The next issue concerns the testimo
ex-wife, Norma Sue Powell.
brought
ny
led to or
of Hoehn's
anything which
* * *
about,
happened on their
appear
unnatural or
testified about what
would
She
180,
only required
the time with
to set forth
also: Bruce v.
268 Ind.
State is
1. See
1042,
specificates
as the circumstanc-
where the notice of alibi stat
such
375 N.E.2d
permit.
the court held that
and evidence
ute was involved and
es
wedding night and that Hoehn had told
showing
her
Young
John
was available for
morning
the next
"special"
that it had been
See,
cross-examination.
Gaunt v.
because he had held the hand of a seven- supra. Thus,
exception
general
to the
year old
friend who was
bed with them.
regarding
rule
hearsay
inapplicable.
is also
trial,
At
on the basis of
The
trial
court
also sustained
remoteness,
irrelevancy,
and that
it failed
objection
State's
to Hoehn's testimony
show a
sexual instinct. He did
wherein he attempted to relate the contents
object
not
on the basis of the husband-wife
of a letter he found which had been written
privilege.
any
objec
waived
ex-wife,
by his
the contents of which would
tion on this issue. Richard v.
have discredited her testimony. The evi
262 Ind.
319 N.E.2d
Phelan v.
clearly
dence
constituted hearsay. The ex
State, (1980)
273 Ind.
ception
general
to the
inapplicable
rule is
Hoehn next asserts that the trial court
here as well in
proper
that a
foundation
improperly
objections
sustained the State's
was not
Although
laid.
Powell had been
testimony
to the
of three defense witness-
witness,
called as a
and was available to be
es, specifically,
Williams,
Jason
Vivian
again,
called
there
was no
of this
Hoehn,
Randy
Hoehn.
availability and
was there
Jason Williams testified for Hoehn
properly
fore
excluded.
Gaunt v.
that he had known the victim in school and
State, supra.
the victim had told him and some
Hoehn next contends that the trial court
others Hoehn had never touched him. The
erred in denying two motions for mistrial.
*5
objected
State
grounds
on the
of hearsay
The first motion for a mistrial
during
came
question
after
the
was asked and answer
Hoehn's testimony regarding alleged let-
ed. The
objection
trial court sustained the
by
ters written
his ex-wife which he had
but a motion to strike was not made nor did
read. When the
State
hearsay
on
the
jury
court admonish the
disregard
to
grounds,
prosecutor
the
stated:
the answer. Hoehn is not entitled to rever
simply
That's
not a proper foundation.
sal unless he can demonstrate
that he was
foundation,
The
as we've been over be-
prejudiced by the
error. Pettit v.
fore, is to confront the witness with the
272 Ind.
Here,
gan,
was made
when it is shown
peril,
a denial of the motion.
out
ference was
counsel's
placed
reverse the trial court's
trial court's decision.
dent
and left the courtroom
supra. We do not
placed
such as would
in a
closing argument. A
when a woman
The second
position
held off the record
Hoehn in a
that the defendant was
require
The
motion for mistrial
grave
feel that this inci
position
motions
Again,
discretion
spectator
during
reversal of the
peril.
resulting
bench
we will
for mis
defense
grave
Mor
cried
only
con
years
fondling
older
of
(d) A person
use of
ever,
is committed
or the older
or to
deadly
age
child or
molesting,
the offense
who,
satisfy
of
deadly
or older
age, performs
weapon.
touching, of either
person,
sixteen
the sexual desires of either
by using
force,
a child
a class
but
older
with intent to arouse
a class
or while armed with
[16]
under
or submits to
twelve [12]
person,
D felony.
years
threatening
B
sixteen [16]
felony
of
commits
age,
years
How-
child
if it
any
or
*6
the
for
properly
Upon
denied.
review of
evidence
trial were
only to the evidence
sufficiency, we look
addition,
questioning
In
the
of
the
and all reason
most favorable to
State
young
friend he had come
about
If
to
drawn therefrom.
able inferences
be
night
line of
spend the
relevant
the existence of each element of the crime
questioning.
It is well established that the
doubt,
may
beyond a
be found
determining
in
trial court has wide latitude
Loyd v.
the verdict will not be disturbed.
probative
prej
value of evidence and its
State, (1980)272 Ind.
State, (1982)
impact.
v.
udicial
Chittenden
Ind.,
N.E.2d 86. Even if the offered
436
shows that
evidence
relevant,
twenty-five years
it
old at the
only marginally
is
is
defendant was
incident and that the victim was
the sound discretion of the trial
time of the
within
testified that
admissibility,
years
its
Mar
twelve
old. The victim
court to determine
Ind.App.,
separate
State, (1982)
penis
Hoehn touched his
on three
v.
35 N.E.2d
chand
4
evidence
young boys coming occasions. There was additional
284. The evidence of
to have a
sexual
prove
tends to
Hoehn's
spend
clearly
is
suf
and is relevant to
instinct.
the evidence
depraved sexual instinet
molesting.
ficient to sustain the conviction for
charge of child
molesting.
||
Hoehn next contends that
having
in
conference to
alleges error
court erred
bench
Lastly, Hoehn
sentencing. Hoehn was sen
objection interposed
regard to his
the basis of an
discuss
years
year
one
added
to two
during defense counsel's clos
tenced
by the State
aggravating
circumstances.
The sen Unlike the evidence
at issue in the cases
by
clearly
majority,
within the trial court's
cited
tence was
neither of these
See,
pieces of evidence
statutory authority.
I.C. 35-50-27.
shows a
crime
authority
piece
the defendant. Nor does
It is also within the trial court's
either
of
weight
given aggra
show the defendant
to determine the
be
had a de
evidence
praved inclination to
vating
mitigating
cireumstances and to
molest children.
In
accordingly. short, I
the sentence
increase or decrease
prejudicial
believe the
effect of
this
clearly outweighed
evidence
probative
its
State,
(1983)
Ind.App.,
v.
nholt
Sha
penal
an increased
determine the trial court abused its dis Ind., Page
cretion. (1981) Ind., Green v. (on remand).
gave a detailed statement of the factors it
found to increase
basic sentence from
Also,
years.
sentencing
two to three
Anthony WILSON, Appellant
statute
lists certain criteria
to be con
(Defendant Below),
However,
during sentencing.
sidered
states that
the trial court
is not limited to
85-4.1-4-7(d).
only those
criteria.
I.C.
Indiana, Appellee
STATE
aggravating
Lack of remorse is a valid
(Plaintiff Below).
factor which the trial court indicated was a
factor here.
Coleman v.
No. 4-784A201.
Ind.App.,
the decision of the trial court.
NEAL, P.J., concurs.
YOUNG, (Sitting by Designation), J. dis- separate opinion.
sents with
YOUNG, Judge, dissenting opinion. cases, molesting
I dissent.
"depraved sexual instinct" rule allows ad-
mission of evidence crimes
defendant if those crimes show a
sexual instinet similar to the sexual instinet charged. in the crime
involved Jarrett v.
State, (1984) Ind., I do
not believe this rule can be used justify
case to the admission of evidence possessed photograph defendant
that the seven-year-old boy
of a nude and that the and his had intercourse
defendant wife boy sleeping in their
while this bed.