*1 TOWNSEND, Scott Appellant- D.
defendant, Indiana, STATE of Appellee-plaintiff. No. 05A02-9206-CR-266. Appeals Court of Indiana, of Second District.
June 1993. Rehearing Aug. 9, Denied Ford,
David C. City, Hartford for appel- lant-defendant. Carter,
Pamela Atty. Gen., Cynthia L. Ploughe, Deputy Gen., Atty. Indlanapohs, for appellee-plaintiff.
FRIEDLANDER, Judge.
CASE SUMMARY Appellant-defendant Seott D. Townsend (Townsend) appeals his conviction for batt ery,1 a class D felony, claiming that the State improperly charged him with two counts battery in indictment, that it was error to call a codefendant to testify witness, as a evidence was improperly trial, admitted at and that the evidence was not support sufficient to the conviction.
We affirm.
FACTS
The facts most favorable to judg- ment reveal that during the summer of 1990, Townsend and his son would occa- sionally stay girlfriend, with his Angela (Turney), apartment at her Blackford County, Indiana. Turney's two- (1988). Ind.Code 35-42-2-1 *2 48
year-old daughter Skye, one-year- and her PARTIES' CONTENTIONS-Townsend ar- son, Brian, old also lived there. charging the State erred in him battery against with two counts of two Turney's neighbors Several of noticed different victims in the same indictment. repeatedly Townsend mistreated The State that the indictment was instance, Phillip and Brian. In one Dish- not defective because the evidence intro- (Dishman), man neighbor a who lived duced at trial demonstrated that Town- way, Skye playing across the saw outside battery against send's acts of each victim yelled with Townsend's son. Townsend at separate were and distinct. 'the quiet. children and told them to be so, they When to do refused Dishman saw CONCLUSION-Townsend has failed to hair, grab by Townsend the children the charging show that him committing pick up, carry them and them into the battery single two counts of in a indictment apartment. occasion, On another Dishman error, constituted reversible inasmuch as grab Skye by he has waived the issue. saw Townsend the hair and ground. shove her to the neighbors Other 18, 1991, February On grand jury overheard Townsend's threats that he was following returned the indictment: going whip Skye with his belt. "Comes Jury, being now the Grand and Turney's neighbors reported Townsend's duly alleges first says sworn and as fol- they abuse when saw with raised lows: (Ben- thigh. bruises on her Helen Bennett during That the month August, of nett), babysitting Skye, who was for no- County, Blackford State of ticed the bruises told Bennett Indiana, Townsend, Scott person a over that Townsend had hit her with a belt. years 18 age, knowingly of did or inten- 13, 1991, February grand On jury in- tionally person, touch another to-wit: dicted committing Townsend for Sky Turney the of- Turney, and Brian who were battery upon Skye fense of and Brian. rude, years age, less than 13 of in a proceeded jury trial, Townsend manner; to a and he angry insolent or and did there- battery guilty against Skye. was found of Battery, commit Felony." a Class 'D' jury acquitted battery Townsend of evidence, at hearing Record 6. After against Brian. petit jury given four verdict forms comprised guilty of forms and not guilty forms for
ISSUES the offenses each of the children. Record at 81-82. The presents Townsend following issues jury guilty battery found Townsend of for our review: against Skye, acquitted but he was of bat- 1. Did the improperly charge State tery against Brian. Record 84-85. battery with two counts of in a (1988) While Ind.Code pro- 85-84-1-9 single indictment which listed vides that an indictment include more separate Brian as two victims? charge than one if the offenses are of the 2. Was it reversible error for the State character, same or similar charging to call as a witness? alleged information before us that Town- testimony improperly Was battery against send committed two differ- admitted? supreme ent individuals. As our court de- Was the evidence sup- Knopf sufficient to termined in v. State 84 Ind. port independent "When two or more of- battery? conviction for joined count,
fences are in the same it will duplicity." be bad for Id. at 324. DECISION ISSUE ONE-Did the improperly (1988) provides Ind.Code 85-84-1-4 charge Townsend with two counts of bat- that defective indictments and informa- tery in a tions, indictment including which listed duplicity allegations, separate and Brian as two victims? subject are to a defendant's motion to dis- miss. The record before us does not show Tucker was convicted appeal, and on our court reversed and observed that: that Townsend ever made such a motion in accordance with IC 35-384-1-4. The un- trial court erred in permitting "[The timely filing of such a motion causes the to be called before [the witness] *3 issue to be waived. Gibbs v. parties State when all knew in advance that Ind., he would 1865; invoke the 488 N.E.2d Amendment. Land State Fifth The (1984), Ind., court further erred in refusing to 470 N.E.2d Townsend any allegation has waived admonish the jury disregard to error that the the situa- tion." indictment was defective. (emphasis Id. at 1111 supplied).
ISSUE TWO-Was it reversible error for
the State to
Turney,
call
Townsend's code-
Unlike the
Tucker,
situation in
the
record
fendant,
before us in way
testify
no
to
reflects that the
as a
witness?
prior
State had
knowledge of Turney's in
PARTIES'
CONTENTIONS-Townsend
tention to invoke her Fifth Amendment
contends that the State improperly called
right against self-incrimination.
prose
Turney
testify
to
prosecutor
because the
cutor did
any
not make
statement
to the
allegedly knew that she would refuse to
court or to Turney
sug
have
testify, and the State
jury
informed the
gested
Turney
that
would refuse to answer
that it intended
Turney
to ask
incrimina-
incriminating questions. Tucker is there
ting questions. The State counters that no
fore inapposite to
position.
error occurred because there is no evidence
yet
There is
another string to our bow.
knew,
that the
prior
Turney's
to
ap-
Although Tucker held that a defendant is
pearance
stand,
on the witness
that she
entitled to
jury
have the
admonished after
intended to
right
invoke her
against self-
a confederate has refused to testify,
the
incrimination.
defendant must
request.
make such a
In
CONCLUSION-Reversible
error did not
(1981), Ind.,
Gadacz v. State
426 N.E.2d
occur when the State called co-defendant
our
court declined to reverse
Turney
testify
to
at trial.
the defendant's
conviction when the State
called a
co-conspirator
convicted
Turney
as a wit-
When
was
witness,
called as a
questions
she answered
regarding her
ness
rela-
who asserted her
Fifth
Amendment
tionship
Townsend,
rights.
with
and
she told the
While the
court
observed that
jury
"defendant was
that
entitled to an
she also had
admonish-
been indicted for
battery.
Turney
ment
that
the witness'
then invoked her constitu-
exercise of
Fifth
right
rights
tional
Amendment
was not
to
self-incrimination. Fol-
be consid-
ered as evidence of the
guilt,"
Defendant's
lowing
preliminary
these
questions,
Id. at
reversal was not warranted be-
State advised the trial court that it intend-
cause the defendant failed
request
to
an
ed
inquire
to
regarding
further
the facts of
admonishment.
the indictment. At no time did Townsend
object to Turney's appearance as a witness
attempt
made no
prevent
to
or to the exercise of her privilege against
calling
State from
Turney
witness,
as a
self-incrimination.
and there was no objection
Turney
when
took the witness
stand. Additionally,
Townsend claims that it was reversible
request
Townsend did not
an admonish
error for the State to call Turney as a
ment
after
invoked
her Fifth
witness,
argues
and
that Tucker v. State
rights.
Amendment
We therefore conclude
(1989), Ind.,
While
evidence is
inadmissible,
parental
strued to include reasonable
disci-
may
held to be
such evidence
pline which would otherwise constitute bat-
purposes
considered for
be
substantive
tery.
(1891),
490,
Hinkle v. State
127 Ind.
is sufficient to
a
fact
establish material
at
777;
(1986),
26 N.E.
v.
Smith
Ind.
hearsay
issue when the
evidence is admit
App., 489 N.E.2d
trans. denied.
timely objection
ted without a
at
trial.
(1991), Ind.,
Banks v. State
567 N.E.2d
presented
The evidence
at
trial showed
two-year-old Skye
that
the bruises
sus-
shape
tained were in the
of a man's belt.
Skye's
Bennett testified to
out-of-court
Record
588. Bennett
testified that
statements that Townsend was the individ-
told her that Townsend wielded the belt
ual
hit her
who
with a belt and caused the
injuries.
which inflicted the
Record at 588.
However,
bruises.
because
certainly
The
could:
conclude that
lodge
timely
failed to
objection
a
to this
treatment of
was cruel
testimony, the trial court did not err in Townsend's
and excessive and did not constitute rea-
admitting
this
evidence. See Id.
parental discipline.
Smith,
sonable
See
su-
ISSUE FOUR-Was the evidence sufficient
pra.
properly
Townsend was
convicted of
support
to
the conviction?
battery because the finder of fact could
PARTIES' CONTENTIONS-Townsend ar-
reasonably infer that he
touched
in a
acting
that he
parentis
was
in loco
angry
rude and
manner.
disciplined Skye
and he
in a reasonable
Judgment
affirmed.
manner. The State
that
the evi-
dence was sufficient because Townsend's
GARRARD, J., concurs.
beating two-year-old Skye
act of
a belt
with
SULLIVAN, J.,
in
concurs
result with
"discipline."
was unreasonable
Opinion.
CONCLUSION-The evidence was suffi-
SULLIVAN,
support
Judge, concurring
cient to
in
Townsend's conviction for
result.
battery.
I
agree
by
filing
do not
that
not
a motion
duplicitous
to
by
dismiss
indictment or
reject
We
arguments
forms,
objecting
not
to the verdict
Town-
justified
his actions were
because he was
any
send waived
error.
jury,
Because the
disciplining Skye
acting
paren-
while
in loco
however,
only
battery,
convicted him of
one
tis. Our
court has determined
prejudiced
Townsend was not
by
duplic-
person
that a
"in
parentis"
stands
loco
ity.
legal obligations
when he assumes
of a
parent
adoption.
without
Sturrup v. Ma-
charged,
As
two batteries were
han
261 Ind.
prove batteries alleged both victims if that is the manner in which the charge is
framed. On hand, the other a valid convic tion may be had if the proves only a battery against one of two alleged victims.
In such instance, it is akin to failing to