Heinzman v. State, 29A02–1012–CR–1327.

• Citation: 970 N.E.2d 214
• Decision Date: 11 September 2012
• Docket Number: No. 29A02–1012–CR–1327.,29A02–1012–CR–1327.
• Parties: Cory A. HEINZMAN, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Court of Appeals of Indiana

970 N.E.2d 214

Cory A. HEINZMAN, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 29A02–1012–CR–1327.

Court of Appeals of Indiana.

June 27, 2012.

Rehearing Denied September 11, 2012.

Kimberly A. Jackson, Indianapolis, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Eric P. Babbs, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

MATHIAS, Judge.

Cory Heinzman (“Heinzman”) was convicted in Hamilton Superior Court of three counts of Class C felony child molesting in one cause and pleaded guilty to one count of Class D felony sexual battery in another cause. The trial court imposed an aggregate sentence of twenty-four years. In this consolidated appeal, Heinzman presents five issues, which we restate as:

I. Whether the trial court erred in denying Heinzman's motion for discharge;

II. Whether the trial court abused its discretion in admitting testimony which Heinzman claims vouched for the credibility of the victim;

III. Whether the trial court abused its discretion in admitting into evidence a letter written by the victim, which Heinzman claims constituted impermissible hearsay;

IV. Whether Heinzman's convictions for three counts of Class C felony child molesting constitute double jeopardy; and

V. Whether the trial court erred in sentencing Heinzman to an aggregate term of twenty-four years incarceration.

We affirm.

Facts and Procedural History

In 2002 and 2003, Z.B. lived in Elwood, Indiana with his father and stepmother. Z.B. was born in 1992, and was ten and eleven years old at the time. Z.B. was experiencing emotional problems due in part to his parents' recent separation and divorce. Heinzman, who was born in born in 1969, was a cousin of Z.B.'s father and worked as a case manager with the Hamilton County Department of Child Services (“DCS”). Z.B.'s stepmother asked Heinzman to mentor Z.B. and help him adjust to his current situation. Heinzman agreed and took Z.B. on several outings, such as going to the cinema, shopping, going out to eat, and watching movies at Heinzman's house in Hamilton County. Z.B. also began to spend the night at Heinzman's home up to four times per month. Z.B. typically slept in the same bed with Heinzman.

On several occasions when Z.B. and Heinzman were in the bed, Heinzman put his hands inside Z.B.'s pants and fondled the boy's penis for approximately ten to twenty minutes. Although Z.B. was unsure of the exact number of times this occurred, he later testified that this occurred “more than twice.” Tr. pp. 306–07. During another occasion, Heinzman and Z.B. were watching television on the couch, with Z.B.'s legs sitting across Heinzman's lap. Although Z.B.'s father was also in the room, Heinzman and Z.B. were under a blanket, and Heinzman again fondled Z.B.'s penis. All of these events occurred before Z.B. moved in with his mother in November 2003.

In October 2005, Z.B. had moved back in with his father. Also at the home was Z.B.'s brother E.B., who is one year younger than Z.B. On October 24, 2005, Z.B. and E.B. got into a fight. After this, Z.B. threatened to kill himself and attempted to do so by wrapping a cord around his neck. Z.B.'s family admitted him to the hospital for counseling. At this time, Z.B. disclosed to his stepmother and a hospital counselor that Heinzman had molested him.

Z.B.'s family informed both the Hamilton County Sheriff's Department and the Department of Child Services of Z.B.'s accusations. After a Sheriff's Deputy took an initial report at Z.B.'s home, Detective Kija Ireland (“Detective Ireland”) of the Hamilton County Sheriff's Department contacted Z.B.'s family to schedule an interview with Z.B. at a child advocacy center in Hamilton County. Rita Johnson (“Johnson”), a “facilitator” at the child advocacy center interviewed Z.B. by herself. Detective Ireland, a deputy prosecutor, and Felicia Boyd–Smith (“Boyd–Smith”), a supervisor for the Marion County DCS,¹ observed Johnson's interview with Z.B. from another room via a video feed. Boyd–Smith also conducted her own investigation of the report of possible sexual abuse by Heinzman. In addition to observing Z.B.'s interview at the child advocacy center, Boyd–Smith spoke with Z.B.'s parents. She then determined that the report of abuse was “substantiated.” Tr. pp. 238, 241.

On November 1, 2005, the State charged Heinzman with three counts of Class C felony child molesting in cause number 29D02–0511–FC–239 (“Cause FC–239”), with all three counts alleging that Heinzman had molested Z.B. by fondling. On May 1, 2008, the State charged Heinzman with Class C felony child molesting in cause number 29D02–0805–FC–46 (“Cause FC–46”). This latter charge alleged that, between 2003 and 2004, Heinzman had also fondled Z.B.'s brother E.B. by placing his hands on E.B.'s penis.

After numerous delays, some caused by Heinzman's motions to continue and others caused by the trial court resetting the trial date as a result of court congestion, Heinzman, on April 22, 2010, filed a motion for discharge pursuant to Indiana Criminal Rule 4(C). After a hearing was held on the matter, the trial court denied this motion on September 16, 2010.

Heinzman's jury trial in Cause FC–239 was held on October 4 to October 6, 2010. At the conclusion of the trial, the jury found Heinzman guilty as charged. On October 7, 2010, Heinzman agreed to plead guilty to Class D felony sexual battery in Cause FC–46 in exchange for the State dismissing the charge of Class C felony child molesting. The trial court accepted the plea and scheduled a joint sentencing hearing in both causes for November 12, 2010.

At the sentencing hearing, Heinzman sought to withdraw his plea in Cause FC–46. The trial court denied this request. The trial court then found as aggravating factors in Cause FC–239 that Heinzman's crimes were statutorily crimes of violence; that Heinzman engaged in a pattern of criminal conduct; and that Heinzman had abused a position of trust. The trial court found as mitigating that, at the time of the commission of the crimes, Heinzman had no prior criminal history. The trial court then sentenced Heinzman to the maximum term of eight years on each count and ordered the sentences to be served consecutively, for an aggregate sentence of twenty-four years. In Cause FC–46, the trial court sentenced Heinzman to a concurrent term of three years. Although the plea agreement called for this sentence to be suspended, the trial court's oral sentencing statement indicated that this sentence was to be executed. Heinzman now appeals.

I. Motion for Discharge

Heinzman first claims that the trial court erred in denying his motion for discharge. Heinzman claims that he was entitled to discharge under Indiana Criminal Rule 4(C) in addition to the Sixth Amendment to the United States Constitution and Article 1, Section 12 of the Indiana Constitution. We address each argument in turn.

A. Criminal Rule 4(C)

Indiana Criminal Rule 4(C) provides in relevant part:

No person shall be held on recognizance or otherwise to answer a criminal charge for a period in aggregate embracing more than one year from the date the criminal charge against such defendant is filed, or from the date of his arrest on such charge, whichever is later; except where a continuance was had on his motion, or the delay was caused by his act, or where there was not sufficient time to try him during such period because of congestion of the court calendar.

As noted by this court in Upshaw v. State, 934 N.E.2d 178, 181–82 (Ind.Ct.App.2010), trans. denied, and Feuston v. State, 953 N.E.2d 545, 548 (Ind.Ct.App.2011), there appears to be a disagreement about the proper standard of review to apply to appeals of a trial court's ruling on a motion for discharge brought under Criminal Rule 4. Some cases have applied a de novo standard, others an abuse of discretion standard, and yet others a clearly erroneous standard. See Upshaw, 934 N.E.2d at 181–82 (collecting cases). Although Upshaw did not resolve this apparent conflict, Feuston attributed the discrepancies to the fact that in some cases the trial court resolved disputed facts, whereas in other cases the court simply applied the law to undisputed facts. Feuston, 953 N.E.2d at 548. Therefore, Feuston concluded that “factual findings made by the trial court are entitled to deference, but legal conclusions are to be reviewed de novo.” Id.

Here, Heinzman was arrested on November 1, 2005, and the trial court set an initial trial date of April 25, 2006. Heinzman filed a motion for a continuance on April 20, 2006. The trial court granted Heinzman's motion and set a trial date of October 31, 2006. Heinzman argues, and the State does not deny, that the 170–day delay between his arrest and his motion to continue is attributable to the State and counts against the one-year time period the State had to bring him to trial. On October 18, 2006, just two weeks before his scheduled trial, Heinzman filed another motion to continue. The trial court granted this motion and set a trial date of April 24, 2007. This delay is clearly attributable to Heinzman.

On April 24, 2007, and again on June 13, 2007, the trial court made docket entries indicating that, due to court congestion, the court was rescheduling Heinzman's trial, and Heinzman's trial was ultimately reset to October 16, 2007. Then, on October 16, 2007, the trial court made another docket entry indicating that, due to court congestion, Heinzman's trial was reset for December 11, 2007. On December 11, 2007, the trial court yet again made another docket entry indicating that, due to court congestion, Heinzman's trial was reset to April 22, 2008. However, there is no CCS entry for April 22, 2008. The next entry on the CCS occurred on May 23, 2008, in which the trial court, in an apparent nunc pro tunc entry, noted that, due to another in-progress jury trial, Heinzman's scheduled trial date of April 22, 2008 had been vacated and reset for ...