Mahoney v. State
388 N.E.2d 591
Ind. Ct. App.
1979
Check Treatment

*1 it has no terpretations, emphasize we statutory right to seek upon Gregg's MAHONEY,

effect Appellant Patrick continuing an extension of the award of Below), (Defendant Gregg's application expenses. medical If is within the one for such modification filed Indiana, Appellee STATE review, the Industrial Board year period of Below). (Plaintiff 22-8-8-4, by is bound IC adjudicate claim on its merits. Further No. 3-378A65. more, opportunity for successive modifi Indiana, Appealsof Court provided Gregg which is cations Third District. bearing the conceivably result Oil Sun injury-related by Gregg incurred for costs April expenses throughout medical the duration of his life.5 "findings

Accordingly, the Board's law) (in effect, fact" conclusions of 1) Gregg's liability for

effect Sun Oil's Au expenses would terminate on

medical 12, 1983,

gust 2) jurisdictional own and its

powers statutory scheme contradict continuing expenses. medical

the award of are findings contrary to law and

Those are In

hereby present, vacated. For its discretion

dustrial Board exercised ex Gregg continuing medical

to award it

penses time which "necessary

deemed to limit or reduce impairment."

amount and extent of such 1971, 22-38-8-4, Gregg's supra. 6

IC award

terminates on 1988. At

time, herein, he consistent with our decision pursue present

can an extension of continuing expenses,

award medical hereby

which is affirmed. HOFFMAN,J.,

GARRARD, J.,P.

concur. (1954), 124 Ind. regard, Curry App. also, Mousley Indiana's scheme parallels jurisdictions 280, 117 N.E.2d those of in which medi- forty-two cal in dura- benefits are unlimited essentially language Larson, is the tion and Law of quoted 6. We find that amount. A. on the Industrial limitation placed statutory (1976). The Workmen's 61.11 Compensation § medical once to award expenses Board's power the culmi- present-day plan represents jurisdiction Accord- over an application. it has nation of numerous amendments to IC length which medical ingly, of time for (Burns 40-1225 Code § one time at any can be awarded Ed.) gradually expanded period of expenses Jurisdic- discretion. to the Board's continuung time for which medical expenses is not in- found, Board Industrial tion, as the could be awarded. That is traced history the period determination volved in the 1971, 22-3-3-4, Ed.). 40-1225 § the award. is covered time which *2 Foelber,

David A. Valparaiso, for appel- lant. Sendak, Theodore Gen., L. Atty. Rollin E. °
Thompson, Gen., Atty. Asst. Indianapolis, appellee. STATON, Judge. Patrick Mahoney was convicted

of the crime of incest with his stepdaugh ter, C. He was prison sentenced to a term of two to twenty-one years. appeal, On Mahoney contends that nu- merous errors were at his trial. We find no error and we affirm. L.

Voir Dire of Jurors During voir dire examination prospective asked jurors how old their children were. Mahoney's objection to this line of questioning was overruled. IC 1971, Ed.), § 10-4206 repealed October 1, 1977. Decem- Mahoney beginning course with Mahoney claims the used appeal gestation for a 1974. The jurors ber to influence inflammatory age hear the evidence of C.'s that a child born on child is such in Decem- have been conceived the time of the incestuous act and Therefore, the evidence against ber 1974. jurors locate who would be biased that Maho- relevant to show pregnancy was Mahoney. Mahoney claims the trial court *3 with C. over ney intercourse ques- such had had sexual erred when it failed to terminate time, charged culminating in the a tioning. April act of 1975. broad discretion The trial court has to exercise its trial court was entitled conducting in the form and substance probative value weighing in discretion v. voir dire examination. Roberts State re against any prejudice of the evidence 1103; Ind., (1978), v. 373 N.E.2d Tewell v. Boles State sulting to the defense. (1976), 88, 792. 264 Ind. 339 N.E.2d State 196, 722. (1975), Ind.App. 322 N.E.2d 163 a permit The decision of the trial court to conclude that We are unable to exam particular questioning line of will be admitting the in abused its discretion ined for an abuse of such discretion. evidence. harm Mahoney any specific fails to show that resulted from the State's to defense IIL jurors. He fails prospective was allege as constituted Acts Other Sexual against ques him a result of such biased as testify permitted At trial C. was any tioning. Finally, he fails show that Mahoney with episodes to other sexual juror challenged as a result was or excused In the April 1975. prior which occurred line of of his or her answers to State's Mahoney's testimony, a rebuttal State's (1970), questioning. Wheeler v. 255 State sister, M., testify to sexual permitted to was 395, Mahoney Ind. 264 N.E.2d 600. a occurred Mahoney which had by advances that the trial abused its failed to show Mahoney appeal year or two earlier. inquire permitting discretion in State in admit trial court erred claims that jurors' chil ages prospective about testimony of other sexual M.'s ting C.'s and dren. argument on cogent a episodes. He makes behalf of his stance. IL offenses prior that evidence It true Pregnancy Evidence Birth inad generally accused is by the have However, courts Indiana Mahoney missible. Sally At trial C. and Mrs. to this rule. exceptions recognized certain permitted testify physical were evi when apply general rule does followed changes physical in C.'s condition offered 29, offenses is prior similar a 1975. dence of birth of child on in "depraved the accused's Mahoney argues that the trial court erred show Ind.App., (1975), Merry v. preg stinct." State admitting prejudicial evidence of a (1970),255 249; v. 335 Kerlin State N.E.2d nancy probative which had no value 22; v. 420, Lamar State 265 N.E.2d respect to the act with which he Ind. of incest 104, N.E.2d (1964), 195 245 Ind. charged. introduced, may be prior acts Evidenceof such pregnancy clearly testified to did not Bowen conviction. of a even the absence occurring result from the act of intercourse N.E.2d 691. 334 Ind. v. 263 April courts al Indiana law allows case Indiana prior Long-standing inces low the admission of evidence of similar prior incest. the admission of prosecution tuous acts in a Woods prosecution v. Ind. 285 acts Woods 250 State, Ind. infra, at Part see discussion prior testify to permitted to III. inter- Thus C. was C. testified to acts of sexual honey made toward her supra. another of Mahoney's permitted to testify to sexual advances Ma- See Merry have been committed with witnesses other than the prosecuting witness Merry v. State, mitted at merely occasions on which Mahoney had had intercourse with her. supra, 885 N.E.2d 249. Thus, M., similar trial. These courts have held that State, supra; offenses similar stepdaughters, was on a Woods v. prior offenses may evidence of occasion. be ad- State, jects § ters within the marital privilege, tion wife, "A. "Q. How 2-1714 Mrs. [*] Well, money, we didn't have any and and ruled on.] ter tional state of Mr. Mahoney in lat- two Sally part [*] specific would he of 1974?" [Objection made Mahoney, to testify to mat- [*] you exchanges: always Ed.). describe the emo- [*] worried about [*] in viola- # ob- The trial court followed the *4 Christmas was coming and-" settled law in permitted when it evidence of Ma- and, honey's prior episodes with C. and M. "Q. Who mentioned that water bill to tion of the offense. accurate in a photograph of C. may have aided the jury more reconstruc- tween the time of the offense formulating a changed greatly during the often be completely irrelevant which C.'s appearance at ing witness at the time of the so ruling. sentences to impose. We cannot conclude tion of which of two disparate relevant ance were court In admitting the photograph within the discretion of cuting witness, prove any in an years the photograph court's which was Wilson v. The admission of the photograph was the trial court abused its discretion in incest indicated that C.'s age before Mahoney claims error admission State in a case such as material taken in prosecution. trial. appearance Photograph (1978), of a issue; instance, IV. the Mahoney argues not Ind., 374 N.E.2d 45. fall photograph jury's age of of the complain- the trial court. three be of is not at issue of and the sixteen had this offense admitted in the trial C., determina- the years statutory at one, appear- prose of C. trial, trial. three that be- in Mahoney's answer did not tial communications and Shepherd v. by reason information gained a marital privilege is restricted to confiden ileged communication which should have been excluded from evidence. The claim of honey's view. Hartman v. 159 Ind.App. 59, 804 N.E.2d 827. cedure, Trial errors, the latter question concerning the water as trial court erred in admitting the answer to bill. Mahoney failed to specify the answer "A. Mr. Mahoney grounds preserve [*] We will not consider whether as just day." cause be on.] you?" emotional As to the question relating to Ma- required for error in his motion to correct sure before he of any claimed error [*] Rule it [Objection made and ruled would the marital Bennett v. state, 59(G). [*] under Ind.Rules of Pro pay State left be shut off handed the we find that Mrs. 257 Ind. [*] constitute a and he (1975), Hence he failed water bill be- State relationship. me for our re [*] told me Ind.App., the the bill priv # next the N.E.2d 165. Mrs. Mahoney's answer re garding general her impression of Maho- Marital Privilege ney's emotional state was not subject In his brief, Mahoney argues exclusion under the marital privilege, as it trial court erred in permitting Mahoney's was neither a confidential communication of grant trial court's uphold We can marital by reason gained it nor was either under limine motion the State's State, supra, 335 Merry v. relationship. two theories. correctly over trial 249. The Mrs. admission prove to the objection tending ruled an First, the facts charged, Mahoney's answer. with crime tended have incest, also would is, molesting, child crime" the "sex prove VI. did crime latter 35-42-4-8. charged. Mahoney was time exist Law" "Rape Shield longer no Law" "Rape Shield While a mo filed to trial Prior from incest a victim specifically protects Mahoney Appellant in limine. tion past her his or questions regarding record on in the include the failed to motion victims protects conduct, still the law dealt the motion appeal. Apparently this, where like cases molesting. child past of C.'s inadmissibility of trial procedural before are made charges attorney conduct. intent to the amended, look we rule present entitled he was claimed that protective passing Legislature inadmissibil exception to an evidence under Law," before both "Rape Shield rule. Law," IC "Rape Shield in the ity contained protect revision, intended and after 1971, 85-1-82.5-1-85-1-82.5-4 C., victim crimes. sex young victims indi The trial Ed., Supp.1978). age years only thirteen case, was written any consider it would cated that engaged Mahoney, stepfather, her when *5 proof con of containing an offer motion Mahoney Had her. intercourse con past sexual of C.'s cerning evidence 1977, he could 1, October charged after been was limine Otherwise, the motion duct. or incest with either charged have been granted. cor- acted trial molesting. child the follow Mahoney made. to prove to requesting no offer Apparently rectly exception were a an if she to seek asked C. Mahoney statutory procedure At trial past of C.'s objection inadmissibility An 1974. virgin December the sustained. conduct. question was the "Rape Shield the if the Second, that Mahoney contends even appeal, trial, the applicable apply not not Law" was did "Rape Law" Shield may be of evidence granting trial, trial court's exclusion that the trial court's and dis its inherent ain exercise resulted as an in limine motion sustained of the State's v. State Lagenour power. of con- rights cretionary his constitutional denial of ques 475. Ind., N.E.2d the 376 cross-examination and frontation C. to ask attempted Mahoney witness, tion which complaining regarded activity past her regarding 1, 1977, "Rape Shield to October Prior trial virgin. awas she whether prosecution a applied to expressly Law" question. objection an sustained 1977, 1, As of October the crime of ain victim morality In Indiana prose- a apply in was revised the statute Mer- issue. is not incest prosecution crime, in IC as defined a sex cution for $85 Evi- State, ry v. (Burns Code 1971, 35-42-4-1-85-42-4-4 prosecut- virtue lack crimes, ef- dence also Ed., sex These Supp.1978). crime, a defense not is witness ing 1977, rape, include as of October fective v. Merry factor. mitigating even nor molesting, conduct, child deviate criminal character moral State, General supra. Mahoney argues exploitation. and child credi- evaluating the only be considered Law," long- which no "Rape Shield that the victim. bility of incest, be not applies specifically er a line that show or argue failed trial, at his by the invoked (and chastity C.'s regarding October subsequent oecurred bearing on her credibility) could have been HOFFMAN, J., concurs in result with followed in the absence of the opinion. State's mo- tion in limine. Lagenour State, supra. HOFFMAN, Judge, concurring in result. The trial court properly sustained objec- an I concur in tion to result question because I do agree regarding C.'s virginity. the Rape Shield Law applicable. case, however, I agree do VIL. court properly excluded the evidence and Sufficiency of the Evidence properly ruled on questions that were Mahoney argues the verdict asked at the trial.

was not supported by sufficient evidence.

This Court may sustain a conviction

for incest upon based the uncorroborated

testimony of the prosecuting witness, which

is sufficient to convince beyond a INDIANA reasonable doubt DEPARTMENT OF STATE guilt. defendant's REVENUE, Appellant Fortner v. Ind. App. (Defendant Below), State, Woods v. supra, 250 Ind. 132, 235 N.E.2d 479. C. testified that on several NORTHERN occasions INDIANA STEEL SUPPLY when she thirteen, COMPANY, Appellee including (Plaintiff the date Below). contained in the charging information, she No. 3-878A197. went to her family's garage to help her Court of stepfather, Appeals of Indiana, Mahoney, sort tapes. On sever- al of occasions, such Third District. pushed he her down on couch, removed her underpants and his April26,1979. pants, own penis inserted his into her vagina. Rehearing Denied June C.'s testimony was sufficient to establish *6 the elements of the offense of incest. The

jury apparently chose not to believe Maho-

ney's various defenses to the crime.

VIII. Judgment

Motion for on the Evidence

Mahoney made a judgment motion for on

the evidence under TR. both at the close

of the State's evidence and at the close of

all the evidence. We have found that presented sufficient evidence on each

element of the crime of Merry

State, supra.

IX.

Conclusion

We have found no error in the conduct of trial on the charge of incest.

The judgment is affirmed.

GARRARD, J.,P. concurs.