Smith v. State

Decision Date22 April 1997
Docket NumberNo. 12A02-9602-CR-74,12A02-9602-CR-74
CourtIndiana Appellate Court
PartiesRex E. SMITH, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
OPINION

GARRARD, Judge.

STATEMENT OF THE CASE

Rex E. Smith appeals his convictions, following a jury trial, for two counts of Child Molesting, and three counts of Sexual Battery, all as Class D felonies. From 1981 through 1994, Smith taught agricultural classes in the Clinton Central School District and, during some of that period, coached the boys' junior varsity basketball team. Smith also functioned as an advisor to students involved in the Future Farmers of America program. The State's six count information filed against Smith alleged the molestation and sexual battery of several boys with whom Smith had come in contact during his tenure with the Clinton Central School District. After a jury returned guilty verdicts on five of the counts, the trial court sentenced Smith to a total of 14 years imprisonment. We will state additional facts in our discussion when necessary.

We affirm in part, reverse in part, and remand.

ISSUES

Smith presents several issues for our review which we restate as:

1. Whether Smith's conviction for count V, sexual battery, was time barred.

2. Whether the State presented sufficient evidence on the element of force to sustain Smith's convictions on counts II and VI for sexual battery.

3. Whether the trial court erred when it admitted evidence of Smith's prior uncharged conduct.

4. Whether Smith was denied a fair trial as the result of prosecutorial misconduct.

5. Whether Smith received the effective assistance of trial counsel.

6. Whether the trial court abused its discretion when it denied Smith's motion for recusal of the judge prior to sentencing.

7. Whether the aggravating factors support the imposition of enhanced and consecutive sentences.

DISCUSSION AND DECISION 1
Issue One: Statute of Limitations

Smith first contends that his conviction for count V, sexual battery, cannot stand because the State failed to bring the Class D felony charge within the five year period of limitations. Indiana Code § 35-41-4-2(a)(1) provides that "a prosecution for an offense is barred unless it is commenced: (1) within five years after the commission of a Class B, Class C, or Class D felony." T.B., the alleged victim of count V, testified that Smith fondled him during mid-season of the 1989-90 high school basketball season. The State did not file the information on count V until June 28, 1995, which the State apparently concedes is outside of the five-year limitations period. See Appellee's Brief at 8 and 20. Although the State maintains that Smith has waived error by failing to object to the charges by way of a motion to dismiss the information, we conclude that a violation of the statutory limitations period constituted fundamental error and, therefore, no waiver occurred. As early as 1860 our supreme court determined that a defendant might avail himself of the statute of limitations without pleading it. Ulmer v. State, 14 Ind. 52, 55 (1860). Thus, our decisions have uniformly recognized that it is a part of the State's burden to establish that the offense was committed within the period of limitations. Fisher v. State, 259 Ind. 633, 291 N.E.2d 76, 82 (1973); Atkins v. State, 437 N.E.2d 114, 117 (Ind.Ct.App.1982) cert. denied, 462 U.S. 1109, 103 S.Ct. 2460, 77 L.Ed.2d 1337. Where then, as here, the information charges an offense within the limitation period but the proof clearly establishes that the offense was not committed within the proper period of limitations, the defendant is entitled to be discharged on that count and the failure to do so constitutes fundamental error. We reverse Smith's conviction on count V.

Issue Two: Sufficiency of the Evidence

Smith next asserts that the evidence was insufficient to support his convictions for counts II and VI, sexual battery. When reviewing the sufficiency of the evidence, we neither reweigh the evidence nor determine the credibility of witnesses. Landress v. State, 600 N.E.2d 938, 940 (Ind.1992). Instead, we look to the evidence most favorable to the verdict together with all reasonable inferences to be drawn therefrom. Id. If there exists substantial evidence of probative value to establish every material element of the offense beyond a reasonable doubt, we will not disturb the judgment. Griepenstroh v. State, 629 N.E.2d 887, 889 (Ind.Ct.App.1994), trans. denied.

To prove each offense of sexual battery, the State was required to prove that Smith touched another person "with the intent to arouse or satisfy [his] own sexual desires or the sexual desires of another person," when that person was "compelled to submit to the touching by force or imminent threat of force." IND. CODE § 35-42-4-8(1). Smith argues that there was insufficient evidence of force or imminent threat of force to sustain his convictions. We agree with Smith.

The element of force may be inferred from the circumstances. Tobias v. State, 666 N.E.2d 68, 70 (Ind.1996). It is the victim's perspective, not the assailant's, from which the presence or absence of forceful compulsion is to be determined. Id. at 72. This is a subjective test that looks to the victim's perception of the circumstances surrounding the incident and, thus, the issue is whether the victim perceived the aggressor's force or imminent threat of force as compelling his or her compliance. Id. We address the evidence of force on each challenged count in turn.

In count II, Smith was charged with the sexual battery of J.H. occurring in the Summer of 1993. The record shows that J.H., a friend of J.H.'s named S.B., and Smith's son were returning from a trip with Smith to judge some livestock. J.H. slept in the back seat of Smith's truck on the way home from the trip. J.H. testified that after Smith had dropped off S.B. at his home, Smith "reached back and unbuttoned my pants and stuck his hand in my pants and grabbed me ... my penis, and he was fondling me...." Record at 372. After Smith stopped fondling him, J.H. pulled away and rolled over on the seat. J.H. testified that he had no reason to be afraid of Smith before the incident. Moreover, J.H. stated that he did not say anything to Smith while he was fondling him because he "didn't know what to do." Record at 373. Although it is clear that J.H. did not consent to the touching, evidence that a victim did not voluntarily consent to a touching does not, in itself, support the conclusion that the defendant compelled the victim to submit to the touching by force or threat of force. Scott-Gordon v. State, 579 N.E.2d 602, 604 (Ind.1991). Not all touchings intended to arouse or satisfy sexual desires constitute sexual battery; only those in which the person touched is compelled to submit by force or imminent threat of force violate Indiana Code § 35-42-4-8. Id. Here, there is no evidence that J.H. was compelled to submit to Smith's touching by force or the imminent threat of force. While this touching may have constituted a battery, it did not constitute a sexual battery as defined by the statute. See id. Therefore, we reverse Smith's conviction for count II.

There is a similar lack of sufficient evidence on the element of force to support Smith's conviction for count VI. The record shows that in the summer of 1994, A.B. accompanied Smith and S.B. to the Vigo County Fair, where again Smith judged livestock. On the way home from the trip, A.B. slept in the front seat of Smith's truck. A.B. testified that he awoke to Smith sliding his hand up the inner thigh inside A.B.'s shorts and grabbing A.B.'s penis. When asked whether he said anything to Smith when he realized what was happening, A.B. responded "no, not really." Record at 438. Thereafter, A.B. did not discuss the incident with Smith. Again, although the touching was clearly not consented to, there is no evidence that A.B. was compelled to submit to the touching by force or the imminent threat of force. We reverse Smith's conviction for count VI. 2

Issue Three: Prior Uncharged Acts

Smith contends that the trial court committed reversible error when it admitted evidence of his prior uncharged bad acts. Smith concedes that he failed to object to the prior uncharged acts testimony of J.M., A.A., and J.H.. Nevertheless, he asserts that he did properly object to similar testimony of S.W., T.J., and T.N.. Despite Smith's objection to some of the prior uncharged acts evidence, we conclude that he has waived appellate review of any potential error in the admission of that evidence. We will not predicate the reversal of a conviction on the erroneous admission of evidence if other evidence of the same probative effect is admitted without objection. Mills v. State, 648 N.E.2d 1212, 1213 (Ind.Ct.App.1995).

Issue Four: Prosecutorial Misconduct

We next address Smith's assertion that he was denied a fair trial due to misconduct engaged in by the prosecutor. In reviewing a claim of prosecutorial misconduct, we consider whether the prosecutor's actions in fact were misconduct and whether those actions subjected the defendant to grave peril to which the defendant would not otherwise have been subjected. Schlomer v. State, 580 N.E.2d 950, 956 (Ind.1991). The determination of grave peril involves consideration of the probable persuasive effect of the misconduct on the jury's decision. Marshall v. State, 621 N.E.2d 308, 320 (Ind.1993). We also consider whether there are repeated instances of misconduct which reflect a deliberate attempt by the prosecutor to improperly prejudice the defendant's right to a fair trial. Id.

Smith claims that the prosecutor committed misconduct when he introduced the...

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