King v. State

KING, Appellant, Robert Houston Indiana, Appellee.

STATE of

No. 12S00-8612-CR-1063.

Supreme Court of Indiana.

Oct. 1990.

Rehearing Denied Nov. Carpenter, Defender,

Susan K. Public Tuke, Defender, M.E. Deputy Public India- napolis, appellant.

492 Gen., approximate- Pearson, on to Atty. Louis E. G.P. went

Linley E. Gen., Ransdell, Indianapolis, Deputy Atty. ly appellant later sent the other one week appellee. for her to come into children outside and told make his bed. When she the bedroom and DeBRULER, Justice. bedroom, stated that he entered the Following appellant, Robert her clothes off and that she made her take of child mo- King, convicted Houston was fellatio and he then was forced to commit 85-42-4-8(a), B lesting, a Class LC. eja- performed upon oral her while he sex 85-42-4-8(c), molesting, 1.C. and child in the stated that she was culated. She Appellant received sen- felony. half The one hour. bedroom about years and six re- years tences of twelve continued to occur victim testified that this sentences to be served spectively with the basis, at least once a irregular on an but brings now concurrently. month, and a half until she was thirteen asserting that his convictions appeal direct victim, appel- years According old. there was insuf- must be reversed because her not to tell her mother or else lant told alleged offenses ficient evidence away children would be taken all the not within a barred placed in their mother and she would be further of limitations. statute jail. convictions must be set maintains that his charges against him dis- and the aside upon which the information missed because inadequate content. he was tried was 19, 1986, the information On March that his convictions Appellant also claims appellant two counts of child charging with because, by virtue of should be reversed alleged molesting was filed. Count One sustaining 1981, per appellant, in the of admission of evi- objection to the State's to deviate sexual con formed or submitted concerning the contents of a dence twelve, age with a child under the of duct conversation, process denied due of he was age appellant was over the of sixteen while present a defense law in that his felony. B years. This is a Class infringed. was that, during of alleged Two at tri- following facts were adduced The 1983, appellant perform or submit did victim, G.P., stepdaughter of is a al. The a child over the deviate sexual conduct with August was born on appellant. She age years age and under the of of twelve year approximately one old and was appellant was over the sixteen while appellant moved into her mother's when age years. of sixteen This is a Class C The victim testified that she household. for these felony. The statute of limitations appellant began nine old when is, pursuant to I.C. 85-41-4- offenses to- making of a sexual nature overtures 2(a)(1), years. five that the first inci- ward her. She stated Appellant contends that there is insuffi- going in 1979 when she was dent occurred support jury's evidence to conclu- cient play the other children outside to that the had sustained its burden sion State inside and appellant called back occurred proving these incidents G.P. testified her to make his bed. told any period by the statute not barred bed, making that as she was allegation, reviewing of limitations. her around the waist and then grabbed nor weigh the evidence this Court will up to her breasts. The moved his hands credibility, will questions but resolve appel- stop him to victim said she told the reasonable to that evidence and look worry, going I'm not replied, "Don't lant support inferences therefrom which he then moved his you." She stated hurt (1970), body, jury. part of her verdict of the Smith

hands toward the lower (Glover (citing Ind. 260 N.E.2d 558 254 appel- again told which time the victim at Ind. v. State victim, ap- stop. According to the lant to 657). then left the room. affirmed if pellant will be conviction curred, only but happen. viewpoint that it did from that This there is evidence of probative value from which a reasonable review of the record fails to disclose the trier of fact could infer that presence of evidence from which a reason- guilty beyond a reasonable doubt. Fair v. able trier of fact could conclude with the 494, State 250 N.E.2d 744. required certainty level of that the offense charged in place Count One took within the alleged Count One that the Class B felo- period required by time the limi- statute of ny incident occurred in the spring of 1981. Appellant's tations. conviction for the 19, The information was filed on March felony Class B victim, is therefore 1986. The in reversed. testimony, provid- ed the with a narrative of how the respect With felony in molestation occurred. She recounted how Two, however, charged which that the began incidents in 1979 and continued the 1983, offense occurred in spring the for four and years a half until she was there is sufficient evidence from which a years thirteen and a half old. in Nowhere reasonable trier of fact could determine testimony, however, the victim's does she alleged that criminal act place any degree seek to establish with of cer- five-year statute of limitations tainty when the 1981 incident occurred. In period. fact, there testimony is no in the record any seeking witness to establish that IL alleged incident occurred on or after 19, 1981, March which would the date Appellant next contends that the in five-year of the incident within the statute 19, 1986, formation filed on March period. of limitations Detective L. Richard inadequate in that it failed to state with Huffer, a Detective Lieutenant with the specificity sufficient the facts and circum City Frankfort Department, Police stated stances which constitute the offenses of 1981 date was arrived at charged deprived and he was thus spoke after he with the victim and she specific charge provided to a by stat period recalled that the time in which the guaranteed by ute and process provi due incident occurred was the 1980-1981 aca- sions of the federal and state constitutions. year. demic In his testimony, Detective appellant Huffer referred to the On June of 1981 date moved to approximate as an date dismiss arguing that G.P. felt she this information pur- could occurring. 35-84-1-4(b) remember incident suant to I.C. a motion to dis- When the two finished their recorded con- may miss be made any or renewed at time versation, she stated that she very was not during upon before or trial if it ground positive about that is a basis for dismissal as a matter of the dates. specific grounds law other than the listed brother, W.P., year The victim's who is a 85-84-1-4(a)(1l) (5). in through I.C. victim, older than the testified that GP. court, however, appellant's denied mo- appellant told him that messing "had been tion, stating timely that the motion was not with her." He stated that she made this ap- made. The trial court maintained that eight statement or nine ago. W.P. pellant's motion to pur- dismiss was made also being testified that he remembers G.P. 85-84-1-4(a)(d), suant to 1.0. failure appellant appellant's alone with in bedroom state the offense with certainty, sufficient with the door closed for a half-hour and thus had to be made no later than on one or two occasions. On cross-exami- nation, twenty days prior to the W.P. stated that omnibus date. On he remembered June filed a Motion to Recon- Thus, occurring nine or ten ago. W.P.'s is limited to information Denying sider Order Defendant's Motion to Informations, concerning stating Dismiss events that occurred well that the trial be- appellant's prior court had misunderstood fore March also G.P. informed asserting motion to dismiss and that the her friend Melissa Randle molesting her. Melissa testified that motion was timely made in that it fell with- say G.P. did not when this molestation oc- purview part in the of that of .C. 85-84-1- exact the infor- to how 4(b), that a motion to dis- lenient provides alleging when incidents ground specified sub- mation must be upon a miss based (a)(10), (a2)(8),(a)(9), (a)(6),(a)(7), or division Wyrick molesting occurred. of child N.E.2d may made or re- (a)(11) this section be during trial. any time before or newed at with two charging the defendant formation this motion July the trial court denied On alleged molesting counts of child between to reconsider. of molestation occurred incidents upheld This Court April and June of 1986. present case was The information child mo- convictions for the defendant's inadequate. name the victim It failed to ade- lesting finding the information be facts and any of the provide and it did not case, In Two of the quate. this molesta- describing how the circumstances information, charging the Class C 85-34- occurred. 1.0. tion was said to have molesting in that the child occurred stated standards the minimum 1-2 delineates designation 1988. a the of Such plead- in Indiana for a must be met which Thus, given the sufficiently particular. sufficient, among the criteria ing and to be pro- in this case particular manner which requirement that in it is the enumerated filed, being the trial court gressed after an offense be and elements" of "the nature to dismiss can- ruling appellant's on motion language." plain and concise "in stated despite appeal, on the not be deemed error requirements statutory minimum These inadequacy the information. facial in case. not met this were however, court, was cor The trial IIL. appellant's motion in rect its contends that his due also the timely made. A review of not was tri process rights infringed were when the that, despite appellant's record reveals prosecution's the hear al court sustained contrary, appel the contents of the claim to the motion Alex places say objection to the dismiss of Lisa lant's motion to ruling, appellant 85-84-1-4(a)(4), ander. The purview of 1.0. maintains, him of his to denied with sufficient state the offense failure to Alexander, for present a defense. Lisa Thus, motion to dis certainty. appellant's firm merly receptionist for the law twenty days made no later miss had to be pre 1.0. 85-84-1- at was prior to the omnibus date. represented deadline, 4(b). meet this she Appellant did not pared to that on March phone pur well after the someone to dismiss came received a call from as his motion According to porting to be the victim. Therefore, it was within the date. omnibus summarily deny Alexander, had prerogative to the caller stated trial court's was false. lied and that the information motion to dismiss. appellant's that at the time she Alexander testified Further, appellant filed his by the time call, not ac she was received dismiss, fully apprised of he to motion and that she had no idea quainted with G.P. surrounding facts and cireumstances beyond the fact that she who caller was recipro- Through the against him. the case object The State identified herself as G.P. appellant was able to discovery process, cal testimony, argu of this ed to the admission specifics prosecution wrest ing hearsay, and the trial court it was was therefore surrounding his case and objection. The trial court sustained the his defense. adequately prepare able refusing to admit Alexan was correct arrest, appellant was Shortly after his the content testimony with der's Appel the victim. that G.P. was formed phone conversation. of the given copy of the victim's lant also long required that a call- This Court has statement, provided him with the which addition, as a foundation identity be established er's allegations. details of the content of the alleging the admission of in the information the dates while identity the caller call. The telephone certain- occurred the criminal conduct beyond a reasonable proved not be need has been ly specificity, this Court lacked

495 doubt; identity of may the declarant be and does not fall within excep- one of the evidence; established cireumstantial and tions to the rule, then it is inadmissible. proof conflicts in identity go Indianapolis Newspapers, Inc. v. Fields weight (1970), of the evidence and (2-2 admissi- 259 N.E.2d 651 bility. (1986), Ashley Ind., decision; DeBruler, J.). 768; Ind., N.E.2d Reedv.State The testimony question does constitute N.E.2d 182. McCormick on Evidence hearsay. extra-judicial It is an statement states: prove was offered to the truth of the a witness has received ... a tele- [If] therein, facts asserted has phone call out of the blue from one who failed to establish that the declarant is in "X",

identified himself as this is not suf- court and available for cross-examination. ficient authentication of the call as proferred maintains that the tes- coming fact from X. requisite addi- timony hearsay was not because G.P. was proof may tional take the form of testi- in court and testify. available to Thurston mony by the witness that he is familiar v. State Ap- with X's voice and that the caller was X. pellant, however, has not made a sufficient Or authentication may accomplished be showing that person victim was the by circumstantial pointing to spoke. Thus, whom Alexander identity caller, X's as the such as if the component confrontation is frustrated and communication received reveals objection State's to evidence of the speaker knowledge had only of facts that phone properly conversation was sustained. X would know. Nonetheless, the more basic defect in this proposed testimony is the lack of sufficient Evidence, McCormick On 226 at 697 § (3d ed.1984). authentification. An in- authentication quiry precursor any is a hearsay analy- case, however, In this appellant offered sis. grounds This does not constitute authenticating no evidence in addition to reversal, however, that, it as has been held Alexander's statement that the caller iden- where by evidence is excluded the trial tified herself as the victim. Alexander ac court, will appeal stand on if knowledged that at the time she received any on theory, sustainable valid whether phone call she did not know G.P.'s advanced at the time of the ruling or not. voice. did not seek to establish Eckman v. Funderburg subsequent phone to the conversation 208, 108 N.E. 577. Alexander became familiar with the sound Further, of the victim's voice. further asserts that he attempt did not to show that the contents process was denied due of law in that this phone of the evidentiary ruling prevented him from ade any conversation contained unique facts. any Absent additional evi- quately presenting his defense. While it is authentication, true dence of the trial court was rights few are more fundamental refusing correct in to allow Alexander to than that of an present accused to witness phone as to the content of the con- defense, es in Supreme his own the U.S. competent versation as she was not to do Court has stated: so. accused, In the right, exercise of this State, required as is comply must At objected the State to the procedure with established rules of admission of testimony Alexander's designed to assure both fair- phone grounds call on that it reliability ness and in the ascertainment hearsay. Hearsay is an out-of-court guilt and innocence. prove statement offered the truth of the Mississippi, Chambers v. 410 U.S. facts asserted therein and thus rests on the 98 S.Ct. credibility 85 LEd.2d a of declarant who is in court (1973). Appellant's right pro to due and is unavailable for cross-examination. Hughes v. State by cess of law was not violated the trial to admit Alexander'stesti- challenged If hearsay evidence is refusal mony join majority, the content of the call. To as to one must assume appellant suspended The trial court cannot be said to have his molestation of the early victim from March of 1981 until after fringed upon appellant's present a required comply defense when it him to August assumption an 1981. Such with the rules of evidence. totally unrealistic in view of the of the victim who stated the mo-

Appellant's corresponding conviction and a lested her at least once month from 1979 One, twelve-year under sentence a until she was thirteen and half old 85-42-4-8(a), molesting, child 1.C. Class early which would have been in 1982. felony, B is reversed due to insufficient alleged criminal evidence that the conduct I would affirm the trial court. a time not barred Appellant's the statute of limitations. J., PIVARNIK, concurs. six-year conviction and sentence under molesting, Count Two for child 1.0. 85-42-

4-8(c), however, is af-

firmed.

SHEPARD, C.J., concurs.

GIVAN, separate J. dissents with PIVARNIK, J.,

opinion in concurs. J., DICKSON, concurs in result. WETHINGTON, Appellant, L. William GIVAN, Justice, dissenting. respectfully dissent. The evidence felony shows that the Class B was commit- Indiana, Appellee. STATE of the victim was twelve ted before No. 06S00-8805-CR-488. age. majority The claims the evidence is insuf- Supreme of Indiana. Court support ficient the verdict as to 4, 1990. Oct. evidence there was insufficient establish that the crime was committed

within a barred statute of limitations, charged in which for the crime years. case five Ind.Code was born on Au- 35-41-4-2. victim

§ 14, 1969;

gust was eleven thus she spring

old in the of 1981. charging that she had

The information was under twelve

been molested

alleges the molestation of several of 1981 and consisted during period.

incidents The informa- filed on March 1986. We

tion was judicial take notice that be-

should gan ample on March 20 in 1981. There is case from which the

could determine that the molestations of when she under twelve

the victim age five-year

years of occurred within the applicable

statute of limitations to the in- which had been filed on March

formation 19, 1986.

Case Details

Case Name: King v. State

Court Name: Indiana Supreme Court

Date Published: Oct 4, 1990

Citation: 560 N.E.2d 491

Docket Number: 12S00-8612-CR-1063

Court Abbreviation: Ind.