Allgire v. State
| Decision Date | 21 May 1991 |
| Docket Number | No. 49S00-8804-CR-00392,49S00-8804-CR-00392 |
| Citation | 575 N.E.2d 600 |
| Parties | Harvey J. ALLGIRE, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Susan W. Brooks, McClure, McClure & Kammen, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., John D. Shuman, Deputy Atty. Gen., Indianapolis, for appellee.
Appellant was tried to a jury and, upon charges that he had sexually molested his granddaughter, C.A., he was found guilty on Count I, child molesting, a Class B felony, I.C. 35-42-4-3(a); Count II, child molesting, a Class C felony, I.C. 35-42-4-3(b); and Count III, incest, a Class D felony, I.C. 35-46-1-3(a). This jury also found that appellant had sexually molested another granddaughter, J.B., and he was convicted on Count IV, child molesting, a Class D felony, I.C. 35-42-4-3(d). The jury acquitted appellant on Count V, a charge of child molesting involving a neighbor girl, A.F. Appellant bases this direct appeal on five claims of error, which will be addressed in the following order: 1) denial of a defense request for a continuance and 2) admission of evidence of depraved sexual instinct, both of which affect the validity of all of appellant's convictions; 3) preclusion of testimony of a defense witness on the extent of C.A.'s exposure to or knowledge of sex, which affects the validity of appellant's convictions on the charges involving C.A.; 4) admission of the testimony of State's witness Jean Weinheimer and 5) exclusion of the testimony of defense witness Tyra Phipps, both of which affect the validity of appellant's conviction on the charge involving J.B.
During the time intervening between the filing of charges and trial, C.A. and J.B. underwent counseling, and during the discovery period, appellant conducted lengthy depositions of the two girls and their counselors. After their initial depositions, J.B. made another formal statement in defense counsel's office, then both girls were deposed a second time on motion of defense counsel and over the protests of the girls' parents and counselors. Appellant also sought to discover the counselors' notes and records by way of interrogatories, subpoenas duces tecum and motions to compel. The State produced these documents on the morning of trial, and appellant argued to the trial court that the State had violated the court's discovery order and moved for a ruling that the State be precluded from questioning the counselors about information contained in these documents and for a continuance in order to review the documents. The trial court denied the motions, and appellant assigns these rulings as reversible error.
Trial courts have wide latitude in determining whether parties have substantially complied with their discovery orders and will be reversed only on a showing of clear error. Carter v. State (1987), Ind., 512 N.E.2d 158. Appellant cites Sturgill v. State (1986), Ind.App., 497 N.E.2d 1070, for the proposition that a defendant is entitled to discover statements made to welfare department officials by a child alleged to be the victim of sexual abuse where the child is to testify at trial because those statements could be used for impeachment purposes. Sturgill also holds that a conviction will not be reversed unless there is a showing of clear error and resulting prejudice. Id. at 1072 (citing Wagner v. State (1985), Ind., 474 N.E.2d 476, 485).
Appellant has made no showing that he was prejudiced by the court's rulings beyond his bare assertion that it is so. At the hearing on appellant's motions, the trial prosecutor maintained to the court that the documents contained no statements by the children which conflicted with any of their earlier statements or which were exculpatory to appellant. The court denied appellant's motions because appellant had extensively deposed the children and the counselors and because there would be time to review the records before the counselors testified. Although appellant claims that he was prejudiced in the conduct of voir dire and the cross-examination of the victims by not having prior access to the documents, he makes no claim that there were, in fact, conflicting or exculpatory statements in the documents, nor does he point to any specific references contained in them which would have affected the way in which he conducted those examinations. Absent such a demonstration that appellant was actually prejudiced by the court's rulings, we cannot say that the court erred in denying appellant's motions.
Appellant's motion in limine which sought to prevent the State from soliciting or offering evidence of or making reference to sexual conduct between appellant and anyone other than the victims was granted by the trial court as to all witnesses except one. The court reserved its ruling on the motion as to Anita Allgire, who is appellant's daughter and the mother of J.B., until such time as she testified. During the direct examination of Ms. Allgire by the State, she was asked about a statement she had made at a pre-trial deposition. Appellant made a timely objection and called for a ruling on the motion in limine by the court outside the presence of the jury.
After the jury retired, the court conducted a hearing at which it was revealed that Ms. Allgire had stated in a pre-trial deposition that she believed J.B. when the girl told her about the alleged sexual assault because appellant had made similar advances toward her when she was a teenager. Ms. Allgire's previous statement was to the effect that appellant had put his hands down her pants after she had stolen something from a grocery store. The State argued to the court that this statement was admissible under the depraved sexual instinct exception to the general prohibition against the admission of evidence of prior bad acts. Both counsel agreed that, if questioned as to the deposition, in all likelihood Ms. Allgire's in-court testimony would be that her prior statement was a falsehood. Defense counsel argued that because the witness was expected to repudiate the prior statement, it was not admissible under the depraved sexual instinct exception because the prior statement was not true. The trial court ruled that if Ms. Allgire's trial testimony was consistent with the prior statement, the evidence was admissible under the exception and that if her testimony differed, the State could use the pre-trial deposition to impeach her with her prior inconsistent statement. 1
The jury then returned, and the State called Ms. Allgire's attention to her pre-trial deposition and asked her if she had at that time made reference to an incident which had occurred between her and her father. The following colloquy then ensued:
As at trial, appellant's argument on appeal is that Ms. Allgire's testimony does not fall within the depraved sexual instinct exception because Ms. Allgire denied in her trial testimony that the sexual advance occurred and that the evidence was therefore erroneously admitted and prejudicial, necessitating a reversal of his convictions.
Peckinpaugh v. State (1983), Ind., 447 N.E.2d 576, is directly on point and controls this question of admissibility. The defendant there was convicted of committing criminal deviate conduct, battery, and child molesting on two of his children. The charges were based on sworn statements the children had given to the police. At trial, both children testified that they had lied to the police and that the pre-trial statements were completely false. This Court found that the pre-trial statements could properly be used for impeachment purposes and further that they were admissible as substantive evidence:
The [children's pre-trial] statements constituted the only evidence of the corpus delecti of the charges and the only evidence of the identity of the perpetrator. They were classic hearsay accounts, which the declarants, while acknowledging having made them, nevertheless repudiated in court. Subsequently, the declarants were subjected to cross-examination. Upon this state of the record, the statements were admissible as substantive evidence under Patterson v. State (1975), 263 Ind. 55, 57-58, 324 N.E.2d , 484-85.
Id. at 578. Here, Ms. Allgire acknowledged at trial that she made the pre-trial statement, reiterated the substance of that statement, then immediately repudiated it. Under Peckinpaugh, the statement from her deposition was admissible for purposes of impeachment and of proving guilt. 2
Appellant also argues that the evidence did not demonstrate that he had exhibited a depraved sexual instinct toward his daughter and that therefore the trial court erroneously received Ms. Allgire's testimony as evidence of such an instinct. On cross-examination, defense counsel reviewed Ms. Allgire's pre-trial statement with her as follows:
Appellant maintains in his brief that Ms. Allgire's testimony was that "the defendant once tried to put his hands in her pants to determine whether she was concealing merchandise she had stolen from a store" and that this could not be considered evidence of a depraved sexual instinct. We reject this characterization of Ms. Allgire's testimony. She employed...
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