McGrew v. State

State, (Ind.Ct.App. 1992), a defendant McGREW, Appellant-Defendant, trans. denied. Where David plead challenges performance after counsel’s must show a rea ing guilty, the defendant that, for counsel’s probability but

sonable Indiana, Appellee. STATE errors, pleaded guilty and he would not have going to trial. Id. at insisted on would have No. 86A05-9409-CR-378. Stoltz, did not decide whether failing for counsel was deficient Stoltz’s Appeals Court of of Indiana. conse him the administrative inform about 27, 1996. Rather, Nov. plea. we based our quences of his had holding upon the conclusion Stoltz Rehearing Denied Jan. that he would not have “failed to establish would, instead, have insist pleaded guilty but in going trial” if he had been

ed consequences. administrative

formed of the

Stoltz, N.E.2d at 193. on the present case forces decision

question left unanswered Stoltz. Unlike majority, I hold that a criminal would attorney’s failure to advise his client

defense consequences of civil or administrative does not rise to the level of

a conviction purposes of an in- performance

deficient claim.

effective assistance of counsel

assuming Clayton is correct that his trial

attorney not advise him of the civil or did consequences, that lack of ad-

administrative attorney’s was not error on his

visement

part. Clayton’s attorney represented him adminis-

the criminal matter —not attorney repre- If that trative matter. same pro- Clayton in the administrative

sented Clayton of the

ceedings and failed to inform consequences, perhaps he

administrative in the administrative

would be ineffective However, separate

ease. the criminal case proceeding. To hold

from the administrative attorney deficient for failure inform noncriminal, possible collater-

client of all the consequences occur as a result

al which could place a time-

of a criminal conviction would unnecessary upon an

consuming, burden at-

torney only agreed represent who I would affirm

client in a criminal matter. summary denial of this

the lower court’s Moreover, my in view of reso-

issue as well. ease, issue, particular I

lution of this this findings specific lack

believe the court’s

fact and conclusions of law is harmless error.

OPINION SULLIVAN, Judge. (McGrew) appeals

David McGrew his con- conduct, viction for criminal deviate a Class felony.1 B presents four issues for review, our which we reorder restate as follows: 1. Whether the trial court erred admit- ting evidence seized from his home warrant; pursuant to a search Whether the trial court erred allow- testify two witnesses to as to what crime; the victim told them about the 3. erroneously Whether the trial court testimony regarding admitted samples of hair found in vehicle; McGrow's and 4. Whether the evidence is sufficient to sustain McGrow’sconviction. We reverse and remand for a new trial. anticipate Because we the same issues aris- remand, ing on we address all of them. judg- evidence most favorable to the ment evening July reveals that in the having McGrew was drinks at Levi’s in Williamsport Bar up when he struck J.W., conversation with a woman with whom slightly acquainted. he consuming After drinks, pair arranged additional to meet DJ’s, Lebanon, they a bar West where Later, continued together. to drink and talk McGrew told go J.W. that he wanted to to a in Covington, join bar her to him. invited They departed car, in McGrew’s driving. McGrew Shortly bar, leaving after DJ’s McGrew pulled the car into a dead-end side road to returned, mínate. When he he on entered side, passenger directing J.W. to move steering behind the wheel. McGrew told uncomfortable, J.W. that if felt she she could away. start the car and pah- drive After the parked time, sat in the talking car for a brief kissing, attempted McGrew to unfasten Danville, Daily, William Appellant. E. for resisted, pants. J.W.’s telling J.W. McGrew Carter, Attorney Pamela stop General of she wanted him to because she knew his Indiana, Joven, Deputy A. Attorney girlfriend. James McGrew cornered J.W. behind General, Indianapolis, Appellee. wheel, for steering grabbing her 2(1) (Bums Repl.1994). I.C. Code Ed. 35-42-4— Peyronie’s toward his waist. J.W. ease Disease. Welch testified pushing her head painful that McGrew had removed it could be then noticed someone unwillingness pants. As reiterated her partial J.W. McGrow’s condition achieve even a McGrew, erection, he engage in a sexual act with and that the radiation treatments again, shoving her head toward grabbed J.W. which McGrew received were if used the informing her in a hostile tone his crotch and patient pain severely inwas deformed. “give liked to stated, however, of voice that he knew she also Welch that the disease fleeing Fearful of head.” Record ability would not have affected McGrow’s road, country on the isolated ejaculate the car J.W. ejaculate because a male can absent performed oral sex on McGrew. an erection. got returned to McGrew dressed and then trial, At the conclusion of the McGrew was passenger then drove side. J.W. guilty charged, found and was sentenced car McGrow's car to the site where her years, suspended. to ten then friend, parked, and went in search of her placed probation years for ten and or- Cheryl Morgan (Morgan). She found Mor- years community dered to serve three gan acquaintance, Lynn and an Burkhart corrections. (Burkhart), Attica, at Robie’s Bar and told happened. Morgan

them what advised J.W. I. station; go hospital police or the time, believing refused at that that J.W. Warrant and Seizure prosecution would be fruitless because “there McGrew contends that the trial court any wasn’t evidence” and it was word “[her] admitting by erred in police evidence seized against changed his.” Record 455. J.W. home, during violating a search of his thus later, however, a her mind few hours and rights his under both the Fourth Amendment early morning the next drove to the Warren of the United States Constitution and Article County Department report Sheriffs Section of the Indiana Constitution. incident. 15, 1993, police On October searched 7, 1993, charged On October McGrew was pursuant McGrow’s home to a warrant based by indictment with criminal deviate conduct. probable on information contained in a cause later, police One week executed a search prepared day by affidavit earlier that A1 warrant at McGrow's home and recovered a Lindsay (Lindsay), investigator with the commonly sexual device known as a dildo. County Prosecutor’s Warren Office. Accord- part This device was of the evidence offered affidavit, ing reported during to the J.W. that jury during trial that fol- crime, the commission of the McGrew said lowed, along concern- where, “he would like to take her to his home samples from retrieved McGrow’s among things, other he had a sexual device testimony by Morgan car and and Burkhart known as a ‘dildo’he would like to use on her regarding statements made J.W. after the person”. Record at 47-48. This information incident. provided by was J.W. an interview with McGrew, girlfriend, In defense of Mo- investigators during Indiana State Police and (Burkes), nica Burkes testified that he suf- Lindsay subsequent a at which was interview Disease, Peyronie’s fered from a condition present. penis which caused his erect to curve into a trial, painful Shortly shape horseshoe and resulted erec- before McGrew filed a motion suppress, asserting tions. Burkes testified that fall of that the information progressed point supporting the condition had to the the search warrant was too stale noticeably penis support finding probable that de- cause and McGrow’s ejaculate proper formed and he was unable to or that the sexual device was not a sub- ject in that it not an achieve a full erection. The State’s medical search warrant crime, witness, (Welch), crime, fruit Dr. Norbert Welch re- instrument of the present during viewed medical records even the commission of the McGrow’s motion, agreed developed opposition that had a severe crime. In the State Thus, days was not the information was 81 old when that the information maintained stale, arguendo assuming Lindsay probable and even executed the cause affida- “good faith” probable lacking, cause vit. The affidavit does not indicate when J.W. ap- requirement exception to the warrant by Lindsay and was interviewed the State court denied the motion on plied. The trial Police; during suppression apply rule did not grounds that the staleness hearing, stipulated that the first the State type of evidence under consideration. August occurred on interview subsequently admitted at trial dildo was days elapsed total of 67 the time between timely objection. over MeGrew’s Lindsay learned of the evidence the date a. Probable Cause of the affidavit. Article 11 of the Indiana Section element, In addition to the time provides that warrant “[N]o

Constitution issue, upon probable shall but cause”. When nature of the seized items is also a factor to challenge faced with a search and seizure determining probable be cause. considered constitution, we focus under the state Ind., Williams v. State official the reasonableness behavior. Williams, 662, reh’g police denied. seized Moran lady’s handbag pursu the ashes of a burned 539, reh’g issuance of a search denied. The ant to warrant an affidavit and executed if, pre warrant is reasonable under the facts days robbery. after a murder and armed affidavit, sented in the a neutral and de probable The court found cause the ash magistrate probable cause tached could find es would still be at the house more than two particular sought to items be seized “Here, months after the crime: we do not sufficiently the criminal are connected with marijuana, expected can deal with activity, will found in a the items in the natural course of events to be smoked particular place at the time the warrant channels, or moved into commercial but with (1986) Ind.App., issued. Stabenow v. State purse the burned remnants of a and its con having appearance ... tents an innocent and rule, general As a stale information utility.” no Id. at 667. finding probable support will not cause. type of evidence seized also factored (1985) Ind., Raymer v. State heavily challenge. in a more recent staleness gives only 255. Stale information rise to (1994) Ind.App., v. Foster belief, suspicion mere and not reasonable trans, denied, panel N.E.2d of this especially easily when the evidence is con 28-day-interval court held that a between cealed and moved. Id. Our courts have not felony murder and auto theft— crime— per how much time established a se rule as to and the of the did not issuance warrant may elapse obtaining between the fatally Again render the information stale. facts which the warrant is based and distinguished court the seized items from Instead, of the warrant. Id. issuance substances, expected controlled which are the remoteness of the information must be either or “[T]he be consumed distributed.

judged by the facts and circumstances of sought police items in this case in were Armstrong each case. v. State (child’s seat, part innocuous car fur dark 647, 651. Factors to be consid garment, tape) part and in adhesive acquired ered include when the affiant property perpetrator sort of that the age reason information as well as the of the informa (Mobil ably expected keep could clearly Oil tion. Id. The affidavit states that ammunition).” card, charge handgun, J.W. learned of the existence of the sexual during device the commission of the crime.2 Id. at 345. However, upon appeal reh'g

2. McGrew asserts this informa- denied. when the informa- hearsay. crime, tion in unreliable because it is When provided tion is the victim of a information in an affidavit for a search warrant police setting affidavit of the officer forth the informant, supplied by is the affidavit must report justify is victim’s sufficient to issuance also set forth the of the information. of the warrant. Id. Ind., Mickens likely claim, Although might a sexual aid fall As to federal McGrow’s even assum category valid, of items described as ing arguendo outside the that it is exclusion of the Id., “innocuous”, or those which have “an dildo the Fourth under Amendment is not appearance utility”, no innocent pursuant warranted. Evidence obtained Williams, is, supra, 426 N.E.2d at it in faith, good pursuant in searches conducted probability, type property all warrant, judicially issued search is admissi reasonably expected McGrew could trial, ble at if even the warrant is later keep length ques for at least the of time in determined to be invalid. v. United States judge’s tion The trial determination of here. 923-24, Leon 468 U.S. 104 S.Ct. probable was not cause unreasonable 3405, 3420-21, excep 82 L.Ed.2d 677. This argument. context of a staleness 1) applicable judge tion is not if: issuing the warrant was misled informa McGrew also asserts that the evi knowingly recklessly supplied by tion or lacks sufficient nexus with the crime dence 2) affiant; deficient; facially the warrant probable Although cause to exist. suffi 3) lacking or the affidavit is so in indicia of automatically cient nexus exists in the case of probable entirely cause as to render unrea instrumentalities, fruits, contraband, executing sonable the officer’s belief evidence,” probable the ease of “mere cause 923, 104 3421; existence. 468 U.S. S.Ct. at must be in terms of cause to be examined (1995) Ind.App., Cutter sought lieve that the evidence will aid in a 704, 714-15, trans. denied.3 particular apprehension or conviction. War den, Maryland Penitentiary Hayden McGrew contends that the evidence 294, 307, 1642, 1650, 387 U.S. good-faith exception saved under the 35-33-5-l(a)(4) 18 L.Ed.2d 782. See I.C. Lindsay’s provide because failure to (Bums (court Repl.1994) Code Ed. issue dates of the interviews with J.W. misled the property constituting a warrant to search for judge prevail who issued the warrant. To tending evidence of an offense or to show claim, upon this McGrew must demonstrate particular person that a committed an of Lindsay offered fense). The State asserts that the evidence truth, disregard reckless for its but also that person tends to show that, misrepresentation was such had the However, who committed the sexual act. known, judge it would have affected his de identity McGrew’s is not issue. It is his Cutter, probable termination of cause. su position alleged involving crime J.W. pra, 646 N.E.2d at 715. McGrew has shown place and himself never took at all. Be that acquired neither. The date the affiant may, recovery as it of the dildo from only information is one factor to be consid testimony McGrew’s home renders J.W.’s ered, along type sought with the of evidence regard personal more credible with to the and the date the victim learned its exis sexual nature the conversation and con Here, tence. we do not find the omission to by question. duct McGrew on the occasion item”, of a character that would The fact that a dildo “is not an have affected unusual 30, Appellant’s judge’s Accordingly, the goes weight Brief at to the determination. and not to the issue of even if the search warrant was invalid under whether claim, sufficient nexus existed between the evidence McGrew’s federal execut officers good and the crime. the warrant did so in faith.4 "good "good It has been observed that faith” fact.” 646 N.E.2d at 715. Thus the faith exception” inapplicable. exception inapplicable was not rendered when the who officer serves the and conducts the warrant search is good-faith exception 4. The federal enunciated in provides misleading same officer who or er- applicable Leon has been held to Art. Sec. 11 leading roneous information to the issuance of Hopkins of the Indiana Constitution. v. State Bryant Ind.App., the warrant. (1991) Ind., 345, 351, reh'g 582 N.E.2d denied. Cutter, Although 655 N.E.2d 103. the officer (Bums Repl.1994). See I.C. 35-37-4-5 Code Ed. provided who served the warrant information apply exception We need not this to McGrew’s warrant, resulting in issuance of the this court claim, state because we determine that most, determined that at the information con- pursuant search to this warrant was reasonable tained "minor mistakes and inaccuracies of under the state of reasonableness. standard trial, testimony Prior to at Prejudice the crime. J.W.’s b. ar both witnesses testified when J.W. sought to exclude the evi- McGrew also Bar, visibly rived at Robie’s she was shaken trial, slight it had maintaining dence told them that McGrew had hurt her baldly asserting, without probative value and pulling hair. Burkhart also testified that her “probably it argument, further that was told them had forced her to J.W. McGrew against him. prejudicial evidence” Rec- most spotted a perform oral sex. The witnesses upon appeal ord at 520-21. His contentions head, go lump urged her to J.W.’s illuminating, are somewhat more albeit inher- police hospital.5 or the First, contradictory. ently he asserts that if prosecutor After the asked the witnesses probative the sexual device had scant value why upset, J.W. told them she was “[although may not be as because dildo objections. timely hearsay In both raised say common of a household items as [sic] instances, prosecution claimed that television,” Appellant’s Brief at radio or proffered testimony recognized fell within a anyone could have at home”. “it was an item exception hearsay it rule because was Conversely, Appellant’s Brief at 30. he offered to show the victim’s state of possessed maintains that evidence that he agreed mind. The trial court and admitted particular highly this household item was testimony objection. over McGrow’s jurors prejudicial it could have led because “ “pervert” he was a and therefore believe statement, ‘Hearsay’ than is a other one guilty. Appellant’s Brief at 31. testifying at made the declarant while hearing, prove trial or offered evidence to may Relevant evidence be excluded the truth of the matter asserted.” Evid.R. substantially probative if value is out 801(e). Hearsay is inadmissible unless ad- danger prejudice. weighed of unfair pursuant recognized exception. mitted to a trial court Ind.Evidence Rule 403. The has Upon appeal, Evid.R. 802. main- determining probative latitude in wide tains that was admissible as prejudicial impact. of evidence and its value as a either excited utterance or statement (1987) Ind., Youngblood v. State 515 N.E.2d physical of the declarant’s mental or condi- doubt, pro the dildo was Without tion. bative that it corroborated J.W.’s account trial, however, partic At no of the incident. concerning Statements the declar- asserted, prejudice beyond ular existing ant’s then state of mind admitted, claim that if it were McGrow’s exception recognized by admitted under the going during “that’s all we’re to hear final 803(3). hearsay Evid.R. This includes state argument.” Record 521. The trial court ments offered to show the victim’s state of admitting did not abuse its discretion prior legally if mind the crime relevant. evidence. (1995) Ind., 535; Taylor v. State (1992) Ind.,

Davis v. State cert. denied II. U.S. 340; 392, 126 L.Ed.2d Lock v. S.Ct. Hearsay 1155, 1159, cert. de (1992) argues further that the trial court nied McGrew U.S. S.Ct. Here, admitting testimony by erred in L.Ed.2d 400. offered the J.W.’s friends, Burkhart, Morgan regarding hearsay to show the victim’s state of mind by shortly Although made such statements victim after incident. after brief, go hospital appellate police In his McGrew asserts that the refused to or because "impermissibly trial court two wit- allowed these she said she was "scared.” Record at 262. We testify nesses to to what the victim told them admissibility do not address the of this statement Appellant’s about the crime.” Brief at 41. He by J.W. because it is a statement "about the not not, however, specific does ny set forth the testimo- crime”, appears target which to be admitted, improperly although he claims appellate challenge, con- McGrew's but instead provide portions he does record cites cerns her emotional state sometime after testimony. witnesses' Included within these cit- event. portions testimony by Morgan ed is that J.W.

7«5 inadmissible, per in Morgan se this ease the informed her that up- was in the any legal State failed to demonstrate rele- portion stairs of the establishment. J.W. vance, merely asserting that J.W.’s state of ordered a drink proceed- from the bar before mind was at issue because the State had to ing upstairs to recount the incident to Mor- prove knowingly intentionally or gan. perform forced J.W. to oral sex. exception The excited utterance proba J.W.’s state of mind is not premised upon person the rationale that a knowingly tive as to whether McGrew acted under the startling stress of a event will be Further, intentionally. even if it were incapable type thought of reflective relevant as to whether he “forced” her to engenders Thus, any fabrication. act, engage in a sexual McGrew has not spontaneous statements will be and reliable. raised the issue of consent. the state Admission exception under the pre is not ments could have been offered to show cluded if the statements are made that McGrew committed the crime. The response victim in questioning by wit exception state-of-mind does not include (1976) E.g., nesses. Block v. State 265 Ind. memory prove statements of or belief to 683, 685; Hopper v. State 803(3). fact remembered. Evid.R. J.W.’s (1986) Ind.App., 1209, 1212-13, 489 N.E.2d description of type the incident is the cert. denied 479 U.S. phrase evidence that the final of Evid.R. 592, 93 L.Ed.2d 593. Nor does fact that 803(3) designed to exclude.6 the victim left the crime scene and traveled describing Such evidence the events sur- report some distance to the crime render the rounding a crime be admissible as excit- exception Block, inapplicable. supra. 803(2), ed utterances. Under Evid.R. Block, rape victim in South Bend relating statement startling to a event made directly Niles, drove to her sister’s home in

while the declarant was still under the stress n Michigan 15-minute drive. When her —a of the excitement caused the event is not sister happened, crying asked what vic- hearsay excluded rule. For the “ex- tim was rape pro- able to describe the exception apply, cited utterance” two basic vide the losing name of her assailant before requirements must be met: being consciousness and admitted to the “ ‘First, startling there must be a or excit- hospital. The court held that the excited ut- ing event that thought renders reflective exception applied. terance hearsay “The Second, inoperative. the statement must statements admitted into evidence were spontaneous be the result of the event and made under circumstances and mental con- ” the result thought.’ of reflective ditions which exclude the idea of delibera- (1987) Ind., Goolsby v. State 517 N.E.2d tion and fabrication and render the utter- (quoting Ind., Corder v. State trustworthy.” ances Id. at 685. 409). that, Although crime, J.W. testified after State did not seek to she Lebanon, drove car admit J.W.’s McGrew’s to West statements under the excited re- exception, trieved parking her own car from the utterance lot of will a trial sustain bar, DJ’s and then drove to court’s decision to admit if any Levi’s bar in valid Williamsport it, Morgan. ground search of Upon support exists to whether or not discovering that Levi’s had closed for the the trial court ground. considered that See evening, got Hyde Ind., J.W. back her car and drove patron Robie’s bar Attica. A of Robie’s 650. Based the evidence of record in 803(3) 652, 655, 6. Evid.R. App., also allows the admission of part aff'd regarding statements ing physical the declarant’s then-exist- grounds part vacated on other condition, pain. such as J.W.'s (grandmother’s testimony N.E.2d 1140 that child pulled statement that McGrew had her hair re- molestation victim said "her bottom was sore” painful experience past counted a in the and was physical was admissible as a statement of her description pain presently expe- not a she was perceiving condition at the time she was such, riencing. As it is not admissible under condition). 803(3). Evid.R. See Fleener v. State Ind. samples. At the conclusion the hair however, say that car with case, cannot J.W.’s we this hearing, moved to exclude McGrew made Mends —which were to her statements maintaining mi- testimony, that distance, Sobieralski’s ordered traveled some after she analysis empiri- not been croscopic hair had necessarily drink, and calmed herself —were too that the results were cally tested and thought. exception is The of reflective bereft “scientifically ... sound.” uncertain to inapplicable. trial court denied at 625-27. The Record admitting court erred The trial motion, expert noting that testimo- McGrew’s is harm testimony; the error analysis microscopic hair had ny regarding which is cumula of evidence less. Admission courts allowed in Indiana previously been with admitted at trial of other evidence tive reliabil- any questions regarding the that objection reversible does not constitute out weight, and not ity went to the of the results (1990) Ind., error. Wolfe testimony. admissibility, of Sobieralski’s that McGrew 421. testified at trial J.W. microscopic that judge concluded The trial and forced her to grabbed the hair her analysis the traditional scientific hair “is not testimony by Morgan perform fellatio. The evaluation”, person’s “simply but instead only further evidence and Burkhart was microscope,” ... much under a observations therefore cu statement and was the victim’s analysis handwriting com- expert in like an (1989) Ind.App., Beck v. State mulative. See exemplars. Record at handwriting pares hearsay did the N.E.2d 209. Nor testimony repetition drumbeat constitute testified, over McGrew’s then Sobieralski recognized as revers victim’s statements hairs re- objection, that examination of the ible error Modesitt a hair car revealed trieved from McGrew’s the victim’s 651-52. Prior to sample, hair but to McGrew’s head dissimilar Modesitt, three witnesses testi testimony in “sufficiently head hair sam- similar” to J.W.’s vic concerning what the great detail fied origin. The converse ple to be of common alleged acts tim had told them about com- result was obtained when Sobieralski Here, Burkhart’s Morgan’s and molestation. car pubic hair recovered from the pared' a consis testimony was brief and on this issue sample. Sobieral- pubic hair with McGrew’s thus, testimony; later tent J.W.’s testifying acknowledged that he was ski testimony cause is not find admission of from found in the ear were J.W.’s the hairs Schumpert v. State for reversal. See region, only that pubic head and McGrew’s 1359, 1363. Ind.App., “sufficiently they similar” J.W.’s were pubic hair. Record hair and McGrew’s head III. at 657. Sample Analysis Hair argument gravamen of McGrew’s microscopic analysis is unreliable that hair inci- reported the Two weeks after J.W. unscientific, and therefore inadmissible authorities, the State Police obtained dent 702(b), provides: Evid.R. under car. Several warrant for McGrew’s search “(b) testimony near the Expert were recovered from an area scientific is ad- hairs seat, compared of the front and were if the court is satisfied center missible pubic samples principles upon obtained which the with head and scientific appeal, Upon are reliable.” expert from both J.W. and McGrew. rests court errone- contends that the trial Evid.R. testimony regarding ously admitted Specifically, McGrew contends hairs. We microscopic analysis of these lay failed to a foundation agree. 702(b) prerequisite is a which under Evid.R. testimony. of scientific presence of to the admission hearing A outside the was held argues determining admissibility farther jury of McGrew to determine the underlying reli- Sobieralski, principles are Police whether the testimony by a State Carl able, apply court should the frame- the trial analyst in hair who DNA trained Su- articulated the United States work compared hairs retrieved from McGrew’s

797 cation; 3) potential in known or preme Daubert v. Merrell Dow the rate of Court (1993) 579, error, U.S. 113 Pharmaceuticals 509 as well the mainte- as existence and 2786, 125 L.Ed.2d controlling S.Ct. nance of the tech- standards 4) nique’s operation; general acceptance and Federal Daubert was decided under Rule community. within the relevant scientific 702, provides: which Evidence 593-95, 509 U.S. at 113 S.Ct. at 2796-97. scientific, technical, specialized “If or other matter, will of fact knowledge assist the trier although As an initial we note that 702(b) the determine a requires understand evidence or to Evid.R. trial court be issue, qualified fact in a witness as an reliability satisfied of scientific skill, expert by knowledge, experience, principles, language of itself the rule does education, testify training, or thereto provide precise Shortly a test. after opinion in of an the form or otherwise.” appellant’s brief, however, McGrew filed Supreme our held that Court Daubert its Although language of FRE 702 was progeny, binding upon issues while (a) rule, adopted as subsection of the Indiana law, in “helpful” apply- Indiana are (b) unique in subsection Indiana rule 702(b). Steward, supra, Evid.R. express requirement expert sci N.E.2d at 498.7 The court observed entific be based reliable sci driving “[t]he concerns Daubert with coincide principles. entific See v. Steward State express requirement Rule of Indiana (1995) Ind., 490, 498, reh’g 652 N.E.2d de 702(b) Evidence that the trial be court satis- reliability A requirement nied. similar reliability princi- fied the scientific read into Federal Rules of Evidence ples involved.” Id. Supreme the United States Dau Court bert, Daubert, supra, 509 however. U.S. at 702(b), adoption Prior to the of Evid.R. 589, 2795. The held that Court used the trial deter standard courts Frye the test United established v. States mining admissibility of scientific evidence (1923) D.C.Cir., 1013, required 293 F. subject of debate. See Harrison v. proponent of novel scientific evidence to (1995) 1243, Ind., 644 N.E.2d 1251-52 State general acceptance demonstrate in the rele (1991) Ind., (citing Hopkins n. 15 community, vant scientific did not survive the (Dickson, dissenting)). J. Daubert, adoption of the Federal Rules. su Frye A line of followed the test for cases pra, 509 at 2793. In U.S. S.Ct. which was “nov scientific evidence deemed standard, rebuking Frye the strict the Court Hopkins, supra, el”. 579 N.E.2d at 1302-03 rigid “general acceptance” a stressed that (DNA testimony); identification Cornett requirement would at odds the lib (voice approach opinion testimony eral evinced Frye spectrography). The standard was not Daubert, supra, Rules. Federal conclusively adopted, prerequi as a 588,113 U.S. at S.Ct. at 2794. testimony. expert Other site scientific rejected expressly

Daubert forth a set non-exclusive list of cases court determina reliability require making factors to aid federal trial courts tion of foundational ment, preliminary holding long as assessment of whether the rea- instead that so soning methodology any regarding underlying qualified, questions or the testi- mony scientifically valid and whether that of the scientific methods went admissibility, reasoning methodology weight, not the properly can be Daubert, applied expert testimony. supra, to the facts at issue. Rowan v. State (hair 592-93, Ind., 816, reh’g 509 U.S. at 113 S.Ct. at 2796. Fac- denied 1) analysis); Ind.App., inquiry tors which bear this include: Fleener technique part whether or can vacat has been aff'd (child 2) tested; Ind., empirically part technique whether the ed in 656 N.E.2d 1140 syndrome). subjected peer publi- has been review and abuse accommodation reply 7. The Rules of became brief and brief addressed the Indiana Evidence effec- McGrew's 1, 1994; implications respect January tive trial to the trial McGrew’s was held of Steward with 10-13, May respondent’s ruling. Both the court's State's 798 702(b), capable particular technique the scientific

Following adoption of Evid.R. the however, results, any expert producing Supreme made it clear that reliable our Court longer questions regarding reliability specif- the of a testimony is no admissible scientific unless the court is satisfied that spe- the of a testing procedure, ic or the results Indiana testimony upon test, weight which the principles go cific of the scientific scientific Harrison, supra, 644 testimony admissibility. Hop- are reliable. rests and not kins, im- requirement at 1251. This supra, N.E.2d 579 N.E.2d at 1302-03. evidence, regardless of posed on all scientific case, In trial not ex- this court did principles underlying are based whether reliability pressly judicial take notice of rooted on novel science or are established principles supporting micro- of the scientific Daubert, 702(b); e.g., su- principles. Evid.R. fact, scopic analysis.9 apparent it is hair 11, pra, 509 U.S. at n. 113 S.Ct. at 2796 593 trial from review of the record that our time, however, 11. At the the stan- n. same judge analysis to be a did not consider hair reliability determining for has been dard type of re- “traditional” scientific evaluation in accordance with Daubert. broadened quiring proponent lay to a foundation of Steward, supra, at 498.8 argument reliability. Although a colorable view, support could made to this possibly be proffer expert Faced with argued microscopic has party neither that may judi testimony, the court take scientific testimony analysis hair ex- is non-scientific reliability underlying notice of cial empt requirement im- from the foundational subject principles if it is not to scientific 702(b).10 Steward, posed purposes of by Evid.R. For supra, 652 dispute. reasonable case, therefore, 201(a). appears it that we this clear 499; In the ab N.E.2d Evid.R. dealing are with more than a visual observa- notice, judicial proponent must sence microscope. tion In this of a hair under to provide foundation convince sufficient principles” sense are then there “scientific princi court scientific trial that the relevant Steward, 499; supra intimately necessarily involved in the ples are reliable. 1140, testimony. v. process to Fleener expert which led principles The in the case 1141. Once court has determined that “scientific” at work predicted height objects one has are to calculate the of other least commentator used At application require analysis lead photograph, will to contradic- does not un of Daubert (1995) Daubert); tory procedures Velasquez results: more novel scientific der United v. States 844, 850, Cir., reh'g (question some tech- will be admitted while established 3d F.3d denied 64 subject scrutiny, niques, greater may applied fail to whether Daubert standard should pass "gatekeeper” assigned analysis); now tri- handwriting function v. Iacobelli Const. Fenner, judges. (1994) Cir., Daubert al See G. Michael The County 2d 32 F.3d 25 Monroe Case, Dilemma, Handbook: The Its Essential (determining geotechnical that affidavits from (1996). Progeny, Creighton 29 L.Rev. Its 953 underground consultant and construction con type target "junk sultant are not the science” Daubert); Starzecpyzel ed United States jury Where a as fact finder a criminal serves S.D.N.Y., (1995) F.Supp. case, must, 880 1040-41 judicial talcing a trial court " (Daubert notice, applicable to field of may, nonscientific jury 'that it but is not instruct the to, examination). Frym judi- see required accept any forensic document But as conclusive fact ” Ind., cially v. KPMG 7th noticed.' ire-Brinati Peat-Marwick Baran Cir., (Daubert analysis applied (quoting 201(g)). Evid.R. 2 F.3d testimony). Al decision to admit accountant's though courts this Indiana have not addressed rules, 10. Under both and the the Indiana federal issue, 702(b) "[ejxpert refers sci Evid.R. general expert test the admission testi testimony”. appear would entific it "scientific, technical, mony regarding other rules, proponent expert under our of relevant specialized knowledge” it is that must assist the “specialized" testimony na of a "technical” or trier of fact to or deter understand evidence ture, "scientific," lay opposed to need not 702(a). mine a fact Evid.R. Federal in issue. reliability. Admittedly, the line foundation of split, are as to courts whether addition testimony "specialized” between "technical” or requirements ap imposed Daubert al should hand, on the testimony. the one ply "scientific” See United States non-scientific other, Cir., 1461, 1464-65, extremely difficult to draw. How F.3d Quinn 9th ever, denied, -, argues party neither that micro cert. because - U.S. non-scientific, scopic we leave ("photogrammetry”, L.Ed.2d 871 in which varying heights objects day. photograph in a another of known issue for sophisticated far from assur a. Daubert Foundation before us are probative ances of and of value. of a sufficiency foundation for noted, microscopic hair As conclusion of matter within is a the sound dis- usually comparison couched in terms mere court, upon appeal, cretion of the trial and we ly “might “similarity”, of be” or “could be”. for an will reverse abuse of discre- Davis, supra, Such does not lend itself cate tion. 598 N.E.2d at 1049. trial, meaningful Dining explained gorization proba Sobieralski that mi- as evidence analysis croscopic visually hair consisted deficiency prompted tive value. This has examining samples side-by-side the hair un- good concerning deal of the debate admissi comparison looking microscope, der at a bility analysis by comparison of hair micro physical number of different characteristics. (1992) scope. Compare People v. 195 Vettese If, upon comparison, the hairs were found to Mich.App. People with N.W.2d 514 489 similar”, “sufficiently Sobieralski would (1989) v. Mich.App. Kosters 175 438 they make a determination that “could have (Peterson, J., dissenting) N.W.2d 651 and person. come from” the same at 624. Record People with Kosters Mich. 437 “Sufficiently similar” of micro- context Levin, (Cavanagh, 311 and N.W.2d C.J. scopic analysis hair was defined Sobieral- J., on, Early dissenting). at least one com following in the manner: ski analysis by that hair mentator noted micro pubic dropped “[I]f I took that hair and it scope primitive even in and not pile pulled into a of standards that was technological produce best device to mean [J.W.], from I’d be able to tell the differ- ingful analysis pro author hair evidence. The pubic I dropped ence. But hair [the when posed analysis that hair evidence was under pile recovered from into a of stan- car] employed because the valid criticism of [McGrew], I dards of could not tell the by compari less methods conclusive such as difference them.” between Record microscope, son and that “the modern hair analysis Microscopic hair has routine been analyst powerful more than has tools ly admitted state and federal courts for analyst microscope ... and that can many years skepticism. King with little many findings specific make than more (1988) Ind., 1154; Bivins v. State general samples ap that two hair conclusion 387; Fultz v. Imwinkelried, pear similar.” Edward J. Fo 123; Ind. Analysis: Against rensic Hair The Case generally A. & Pat see Clive Stafford Smith Underemployment Evidence of Scientific Goodman, Compari rick D. Forensic Hair (1982)39 & Lee L.Rev. 41. Be that Wash. as Analysis: Century son Nineteenth Science may, it here we are concerned Oil?, Century Twentieth Snake 27 Colum. whether hair can be made more (1996). Hum. Rts. Our re L.Rev. meaningful jury criminal to a or whether it yields reported Indiana but view decisions Rather, meaningful can be made at all. we reliability case in which the of the tech one analysis may jury assume that hair aid directly nique challenged upon appeal. and deliberations be relevant. Our Rowan, Rowan, supra, 431 N.E.2d 805. simply ap task is an to determine whether expert an testified that there were sufficient propriate adequate preceded foundation a hair at the mur similarities between found expert opinion.11 admission of the der victim’s home the defendant’s presented we will the evidence examine sample origin, for them be common proper if State to determine foundation “prob that the hair found the crime scene satisfy requirement ably” laid to tech Id. at came from defendant. nique’s reliability. Upon appeal, defendant contended that Uhm, Uh, tip. analyst prelimi- 11. The DNA cle. The fusi. State Police testified root. The cortical narily comparison necessary making physical Uh, that it was Pigment. pigment dispersal. ovoid bodies. of one hair another that he look at Uh, Uh, gaping. cuticle I look for thickness. many different characteristics far outside the ken Weathering. dyed. been condition of hair. If its lay necessary jurors. stated He that it was specially at 615. If its been treated.” Record Uh, look "at the medulla. the cortex. cuti- studies is not presented these the The data was no scientific basis there record, and therefore we will part of our opinion. Id. Our expert could formulate 7.2(a). Ac- upon appeal. App.R. consider it evidence was held that the Supreme Court Cir., v. Bonds 6th cord United States admissible, “alleged lack of noting that 540, 552, reh’g we were “[I]f 12 F.3d denied. brought out on cross-exami- can be data available to us at new scientific otherwise to look nation, long and as court [trial] not available weight of the evidence but goes to the qualified, determination, admissibility Because Row- made competency.” Id. and not its confining to review- not be ourselves showing of would require a foundational did not admissibility ruling, but court’s [trial] reliability, it does not control making a de novo determina- assigned tri- would gatekeeper function light of the tion_ ap- of an 702(b). is not the function This judges under Evid.R. al origi- (emphasis pellate court.” Id. at analysis rests microscopic hair Whether nal). principles is an issue upon reliable scientific any Here, present to evi- the State failed After impression for Indiana courts. of first satisfy first of prongs to three dence completed, briefing in this ease was Upon questioning McGrev/s Daubert. ruled district court Oklahoma a federal court, ac- trial Sobieralski counsel and the analysis was inadmissi- microscopic hair that any of knowledged that he was aware Reynolds Daubert. ble under Williamson technique, nor was he error ratio for the (1995) E.D.Okl., In F.Supp. any journals disputing articles or aware of Williamson, of the defendant was convicted methodology. also admitted that he He and sentenced to in state court murder percentages of not know the statistical did trial, expert testified At his a forensic death. general in the certain hair characteristics samples at the crime scene that hair found particular a population probability or the of head with the defendant’s were consistent coming persons than sample from other hair hair, from the pubic and could have come or J.W. in a district same source. Id. The federal found subsequent corpus proceeding habeas did make the bald asser Sobieralski analysis pass microscopic hair failed microscopic ac hair tion any prongs. under of the Daubert muster community, but did cepted in the scientific determination, reaching at 1558. In its Id. community nor which scientific not describe scarcity of scien- apparent court cited “an degree acceptance. “A expound upon the of reliability of hair regarding tific studies ‘reliability require, al assessment does testing”, noting that the few comparison though permit, explicit identification it does point to the meth- available studies tend community and an of a relevant scientific unreliability. at 1556. Nor did the od’s Id. particular degree express of a determination ” through “general gain admission evidence community.’ acceptance within that Id. at 1558. The acceptance” threshold. Daubert, supra, 509 U.S. S.Ct. general acceptance of court determined that Downing (quoting States v. United microscopic analysis was limited to fo- hair (1985) Cir., 1224, 1238 (emphasis 753 F.2d 3d testifying prosecution, experts rensic for the determining In whether supplied)). Sobier- objective scientific and did not extend statement was suffi alski’s uncontroverted past had aimed community which in the satisfy trial court of the scientific cient to technique. pointed at the Id. criticism microscopic analysis, validity hair Appeals’ consideration Ninth Circuit Court Supreme of our Court’s endorse- Mindful is instructive. Dau- progeny, of Daubert on remand ment of Daubert and its we none- Pharmaceuticals inappli- bert v. Merrell Dow conclude that Williamson is theless —(1995) Cir., cert. denied 9th 43 F.3d to this case. The court Williamson cable -, 133 L.Ed.2d rejection microscopic analy- U.S. based II”). court, (“Daubert The federal district published stud- large part sis in various Frye, found that scientific evi- applying had peer articles which criticized ies and review drug linking the Bendectin with birth high rates. dence technique reported error inadmissible, nity” beyond proponents despite generate assurances defects was who plaintiffs’ experts method- solely from that the data for introduction into evidence. generally accepted in ology they utilized was Cornett, Thus, supra, 450 N.E.2d at 503. community. Id. at 1315. The the scientific lay State failed a Daubert foundation. held that absent evidence ad- Ninth Circuit Nor is Sobieralski’s admissible review, rates, dressing testing, peer error 101(a), under Evid.R. which courts allows validity” “bald experts’ assurance of if apply common law the rules do not cover satisfy not sufficient a trial court specific issue. evidence The text of Evid.R. requisite standard scientific met the 702(b) provide reliability, does not a test for reliability. proponent 43 F.3d at A nor, designation despite its of Daubert as of scientific evidence must demonstrate “helpful”, Supreme our adopted has Court findings on sound expert’s are based fact, precise science, test. the court requires objective, has stressed some inde- pendent binding upon that Daubert is “not expert’s validation methodolo- the deter- minority gy. accepted by Id. Methods evidentiary mination of state law issues”. community may Steward, if scientific be sufficient supra, 652 N.E.2d at 498. explains method- proponent expert’s unlike the federal court in Williamson which ology objectively and demonstrates ver- Daubert in ruling upon bound expert ifiable manner that the both cho- has evidence, reliability hair of Indiana courts sen a reliable scientific method followed encouraged are to look to our common to law faithfully. it Id. at 1319n. 11. subject flesh for reliability, out the test sufficient, showing a “For such to be the 702(b) requirement Evid.R. that the court be experts explain precisely they must how reliability underlying satisfied of the of the reaching went about their conclusions and Harrison, principles. supra, See objective point to some learned souree-a at 1251-52 n. 15. treatise, policy profes- a statement of noted, previously As our search of Indiana association, published sional a article a any case to reveal law failed decisions journal reputable scientific or like —to reviewing expressly which the court deter they show that have followed scientific validity principles mined the scientific of the method, (at least) practiced by as it is a microscopic underlying analysis. hair Prior recognized minority of in their scientists however, 702(b), adoption of Evid.R. at Id. at field.” 1319. of type comparison least one visual de II, Daubert In the Ninth Circuit reliable. termined to be Niehaus v. State proponents found that of testi the scientific 655, 513, 265 Ind. cert. mony requisite showing, failed make the denied 434 U.S. “entirely relying experts’ on the unadorned Supreme our that L.Ed.2d Court held methodology they em assertions analysis, technique bite mark a novel at comports ployed pro with standard scientific time, sufficiently reliable to allow cedures”, explaining without methodolo their opinion upon mur that bite marks found gy any pointing or external source by der victim been left had defendant. Id. methodology. validate that A similar Id. negatives Photographic of the defen failing present is this case. Sobieralski super dant’s teeth and the bite marks were testify concerning methodology did he another, imposed upon one expert’s and the However, employed. testimony that his he opinion upon based com number of was trained and determined proficient to be points. mon reference The court distin procedures in standard which had used been guished analysis mark polygraph bite from by years Police for a number of did State pro testing, unreliable where results external, objective not demonstrate vali by duced influences that cannot be controlled Although, dation of methods. under Daubert, compensated for Id. the examiner. methodology need not be em analysis simply majority a Bite mark “is a matter braced of the commu scientific nity, comparison physical items of generally our courts have evidence extended they reciprocal.” boundaries of the “relevant commu- if are scientific determine Id. 1141; Fleener, supra, at comparison party. is Although microscopic hair Bundy whether an analysis, see Rule 61. To determine to bite mark Ind.Trial similar (1984) Fla., do war- we in the introduction of evidence 455 So.2d error State way reversal, prob- for paving the its read Niehaus as rants we examine whether not some jury, light hair absent of all impact admission able validity. evidentiary case, sufficiently minor so its in the is demonstration years our rights before Niehaus was decided six affect the as not to substantial for Frye Fleener, test Supreme adopted Court supra parties. Cornett, supra, 450 scientific evidence. novel evidence is Introduction inadmissible progeny were at 503. Cornett and N.E.2d merely error if the evidence prejudicial Steward, supra, 652 N.E.2d superseded (1991) Ind., 568 Traver v. cumulative. assess- court’s 498. Whether compelled, 1013. Reversal is adoption survived the ment in Niehaus has discloses if the record as a whole 702(b) clear, far from and we will not “ erroneously evidence Vas admitted determining bootstrap use it as method likely prejudicial impact had a to have microscopic hair is reliable juror, thereby con- average mind of the law. matter of ” Traver, supra tributing to the verdict.’ admitting the trial court erred 259 Ind. (quoting Mitchell holding, testimony. In so we SobieralsM’s 860, 863.) 418, 287 N.E.2d establishing per se are stress microscopic hair inadmissibility rule of found in The evidence that hair analysis. reading From our of Williamson “probably” from J.W.’s car came McGrow's addressing law articles and various review merely ad head is cumulative of McGrow’s analysis, it is clear that forensic that J.W. was in his car. The same mission technique empirically has been tested and said, however, tes cannot be of Sobieralski’s review, subjected peer to with a resultant timony pubic front that a hair found on the Thus, propo- of a determination error rates. “substantially to McGrew’s. seat was similar” microscopic analysis con- of hair could nent case, large the in In this conviction rested data, ceivably come to armed with court part upon credibility. pubic The hair J.W.’s studies, scholarly help meet articles to at cor comparison only physical is the evidence Here, prongs. the least three of Daubert the roborating re J.W.’s assertion that McGrew mistakenly that a Daubert believed admit to pants. moved his did not McGrew only required for novel scien- foundation was car, no medi disrobing his and there was techniques, attempt to tific thus did not that cal evidence an act of sexual deviate evidentiary lay requisite the foundation of occurred, although Morgan and conduct had reliability.12 testify a knot on Burkhart did that J.W. had Conversely, medi Errors admission or exclusion her head. the State’s own the regarded expert acknowledged are to cal that suf of evidence harmless McGrew rights Peyronie’s dis- they affect of a fered from a severe case of unless the substantial they visually the micro- indistin- Nor should inconclusiveness of characteristics are 12. analysis proper scopic guishable microscope. a does not hair as a bar if the under Daubert serve subject testimony presented. require is focus of the court’s of foundation The Daubert, certainty. underlying supra, U.S. inquiry be the the known to a 509 should of Any questions principles and not the at 113 S.Ct. at about scientific methods and Daubert, certainty they generate. su- are a matter conclusions which the scientific results Bonds, jury. weight supra, at pra, at 2797. The of for the 12 F.3d 509 U.S. evidence, (citing approval Brady its ad- trustworthiness of the and thus 563 (1979) United States 359, Cir., (lack missibility, hinges technique's of cer- "scientific 6th 595 F.2d 363 on the is, supports tainty goes weight validity”, principle hair and not that whether the Daubert, admissibility)). purports supra, "Vigorous to the cross-examina- what it show. tion, evidence, presentation contrary of and care- at 590 n. at 2795 n. 9. Unlike U.S. S.Ct. specific proof the fingerprints, identify which individu- instruction on the burden of are can ful als, attacking microscopic analysis merely purports appropriate of hair to traditional and means Daubert, supra, shaky come from but admissible evidence." show that two hairs could have a many they at 2798. source if so common 509 U.S. S.Ct. common share extremely painful ingly intentionally make it or person ease could another cause[d] sexually perform him for to become excited. submit to sexual deviate con- person duct the compelled when: other is testimony likely have pubic hair would by force or imminent threat force”. I.C. significant impact the mind of the (Burns Repl.1994). 35-42-4-2 Code Ed. De- juror average only physical it is the because conduct, by viate sexual as defined tending evidence show that bared code, involving Indiana includes an act genitals. impact by heightened his This person organ sex one mouth of special aura of trustworthiness surround- (Burns person. another I.C. 35-41-1-9 Code that, in expert testimony, and the fact Repl.1994). Ed. microscopic analysis, jurors case of hair do generally opportunity direct have The victim testified that after she resisted Williamson, supra, evaluation. See advances, grabbed MeGrew’s sexual he her F.Supp. at 1557. conclude that erro- We hair, pushed her her toward head pubic neous admission of hair evidence genitals, perform and forced her to fellatio because, constitutes reversible error review- ejaculated until he into her mouth. Al- whole, ing the record as a there is a substan- determined, though, previously as we tial this likelihood that evidence contributed hearsay statements and the conviction. admitted, improperly were testimony J.W.’s part discovery corroborated

IV. Morgan’s dildo at McGrew’s home and testimony they and Burkhart’s had seen Sufficiency the evidence a knot the back following head J.W.’s Finally, challenge consider McGrew’s asserts, however, the incident. McGrew sufficiency of the evidence order improbability of the events as described appropriate. determine retrial whether by J.W., combined with inconsistencies be- examining sufficiency of the evi testimony tween her at trial and her state- dence, reweigh we will not the evidence or police, ments to render testimony the victim’s judge credibility of the witnesses. These incredibly dubious. exclusively province are matters within jury. Tillman The uncorroborated appellate An claim of insuf may support the victim for crimi conviction if, only prevail ficient evidence will consider supra, nal conduct. Shippen, deviate probative the evidence and the reason (1993) 903, 904; N.E.2d Sholar v. State Ind. support judgment, able inferences which the 547, App., Application 626 N.E.2d 550. of we conclude that fact no reasonable trier of dubiosity” the “incredible rule is limited to guilty beyond could find the defendant presents cases where a sole witness inher (1995) Ind., reasonable doubt. Davis v. State ently contradictory testimony equiv which is — (1996) cert. denied ocal or result of and the coercion there is a U.S. -, 134 L.Ed.2d 221. complete of lack circumstantial evidence of only impinge jury’s will We resolution Tillman, appellant’s guilt. supra, credibility disputes in those rare instances N.E.2d inherently when we are with im- confronted incredibly probable testimony dubious testimony J.W.’s is neither inherent person no reasonable would believe. ly contradictory, complete nor is there a lack Id.; (1985) Ind., Shippen v. State Although of circumstantial evidence. there 903, 904. discrepancies are minor in the various ac McGrew, gave police order to convict to State counts she of the incident and required prove testimony,13 prov- to that McGrew “know- in had her trial it is within police gave specific approxi- 13. In her to statements she she testified she was unsure of the times. discrepancies mate times for her and both McGrew’s arrivals There were also minor in the ac- departures gave drinking police and at the various establish- counts she to and trial of the time car, they evening; rang- ments visited that at trial when McGrew to her she and returned credibility, If evidence is jury, assessing in to N.E.2d the State’s of the ince credible, prior jury state- is free to disbelieve the resolve conflicts between J.W.’s Id; testimony. trial Hill v. State Moore and her alibi evidence. ments defendant’s (1985) Ind., 20, 21, Ind.App., reh’g 378. Our N.E.2d testimony reveals that of J.W.’s examination denied. incredibly

it dubious. Because there was admissible evidence of sufficiency upon ap his claim To bolster conviction, support record McGrow's excul peal, also asks us to examine McGrew may cause be retried. con presented at trial which patory evidence conviction for criminal deviate McGrew’s testimony. Any J.W.’s conflicts flicted with reversed, is and the cause is remand- conduct testimony by the de presented between ed for a new trial. by resolu the State are for final fendant and fact, by appellate not the tion the trier and FRIEDLANDER, J., concurs. courts, it that the testi unless be said inherently mony of the State’s witnesses CHEZEM, J., separate dissents with expe improbable and runs counter to human opinion. Robey v. rience. 145, 149; Ind., Olinger N.E.2d CHEZEM, Judge, dissenting. 1385, 1387. respectfully agree I I with dissent. argues recount that J.W.’s McGrew majority’s opinion every respect except in light improbable ing of the incident I of the issue. its resolution do medical condition. were faced with a his We agree majority with we must argument Wagner v. State similar against guard the admission into evidence of 421, 424, Ind.App., 562 N.E.2d where held any new science are more until we certain testimony the vic the uncorroborated 1) theory than we will ever be that is true tim was sufficient sustain a conviction 2) undisputed, no human error contami- fellatio, molesting involving notwith child 3) testing process, person nated the standing the defendant his offering process results of a scientific erection. wife that he was unable to achieve expert. resolution of such conflicts “[T]he in, for, adding I see no reason or value province jury.” Id. is within the Nor complexity law of evidence in events, sequence of is the as described supreme Indiana. Our court cited the sim- J.W., inherently improbable. Her initial (cid:127)will plification of Indiana law as one of rea- ingness engage encounter a romantic why adopted it Rules sons the Indiana McGrew, her disinclination to drive thought I Evidence. that meant away or leave ear when events went than a host of cases new rules —rather writ- immediately awry, perceive and her failure to provide Appeals the Court of ten —would in the darkness that had removed requirements for the admission evi- pants necessarily does not run counter in the cases followed. dence Obvious- experience. human ly, I am error. presented McGrew also several alibi wit- importantly, majority testified More I think the nesses who that he was various part evening taking simple in the locations latter errs observation bare- accepted impossible ly qualifies yet have for him which would made it science has been years, to have been with deserted road into evidence for over one hundred J.W. on the during attaching rigid oc- requirements the time frame that the crime ad- If credibility simple curred. The of alibi witnesses’ mission of that observation. jury complicated testimony testimony question also a matter for involved theories, testing, processes, determine. new or new I Griffin sure, penis tag anywhere p.rn. p.m. to 11:30 testified that she but that his from 10:30 wasn’t Additionally, although police that she told she at trial she but seemed normal a little small. erection, thought McGrew had an agree compelling proponent would

of the evidence to set out the foundation

required for the admission of new scientific However, make

evidence. the law should not Every impossibility of itself. time addwe requirement, artificially

a needless com-

plicate law, making it less effective

less efficient. unduly prejudiced

The defendant was not pubic the admission of question substantially

hair in similar to testimony, ad- defendant’s. Such while

missible, is addi- so inconclusive without

tional facts there is not sufficient evidence

for a conviction. I would find the results

looking microscope at two hairs under a ad-

missible, and would affirm the conviction. Gable,

Ronald L. GABLE and Jodi L.

Appellants-Plaintiffs,

Roger CURTIS, Heritage A. Church Build-

ers, Inc., Lynda Curtis, Keeling Ron Savings

Union Federal and Loan Associ-

ation, Appellees-Defendants.

No. 54A01-9606-CV-189.

Court of Appeals Indiana.

Nov.

Case Details

Case Name: McGrew v. State

Court Name: Indiana Court of Appeals

Date Published: Nov 27, 1996

Citation: 673 N.E.2d 787

Docket Number: 86A05-9409-CR-378

Court Abbreviation: Ind. Ct. App.