Andrews v. State, 57A03-8801-CR-1
|529 N.E.2d 360
|19 October 1988
|James Murvel ANDREWS, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
|Court of Appeals of Indiana
Frank J. Gray, Gray & Arata, Fort Wayne, for defendant-appellant.
Linley E. Pearson, Atty. Gen., Lisa Anne McCoy, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.
A Noble Circuit Court jury convicted James Andrews (Andrews) of two counts of class B felony child molesting (counts I and II), three counts of class C felony child molesting (V, VI and IX), and six counts of class D felony incest (III, IV, VII, VIII, X, XI). The court sentenced Andrews to ten years imprisonment on count I, an additional five years on count V, and another five years on count X. The court also sentenced him to: (a) ten years on count II and two years on count IV, to run concurrent with the sentence for count I; (b) five years on count VI, two years on count VII, two years on count VIII, and two years on count IX, to run concurrent with the sentence for count V; and c) two years on count XI, to run concurrent with the sentence for count X. Andrews appeals his convictions. We affirm.
Andrews raises eleven separate issues for review. They are as follows:
1) whether the trial court erred in denying defense counsel's challenges for cause of two prospective jurors;
2) whether the court erred in denying a defense motion for a judgment of acquittal offered on the ground that the State had failed to prove proper venue on counts X and XI;
3) whether the court erred in denying a defense motion for a judgment of acquittal offered on the ground that the State had failed to prove that Andrews engaged in any specific act of oral sex or intercourse with his daughter Therisa prior to her twelfth birthday;
4) whether the court erred in allowing rebuttal testimony by Andrews's former mother-in-law;
5) whether the court erred in denying a defense motion for a mistrial offered on the ground that the State improperly introduced testimony by Andrews's daughter Kimberly that Andrews had repeatedly touched her vagina, an act not charged in the information filed against Andrews;
6) whether the court erred in overruling a defense objection to a question asked by the State to defense witness Sandra Dewart concerning her opinion about Andrews's propensity for physically abusing his children;
7) whether there was insufficient evidence on which the jury could have found Andrews guilty of the charges against him;
8) whether the court erred in denying a defense motion to dismiss the State's amended information for failure to identify the precise dates on which the acts alleged in counts I through VIII occurred;
9) whether two erroneous statements made by the prosecutor in his closing argument constituted fundamental error, thereby necessitating reversal;
10) whether the court erred in refusing to give the defense's tendered instructions 3, 5, and 7 and in giving both its own instruction 15 and the State's tendered instructions 6 and 8; and
11) whether the court erred in imposing consecutive sentences on counts I, V and X.
Discussion and Analysis:
Andrews's arguments and our analyses of those arguments are as follows:
1) The trial court erred in denying defense challenges for cause of two prospective jurors. Andrews argues that the court should have dismissed for cause juror Robert Noe, an active police officer with the Albion Police Reserves, because to permit a police officer employed in the county wherein Andrews was prosecuted to sit as a juror at Andrews's trial was per se prejudicial. We disagree.
Our basis for review of a trial court's ruling on a defendant's challenge for cause is abuse of discretion. Morgan v. State (1981), 275 Ind. 666, 419 N.E.2d 964; Atkinson v. State (1980), Ind.App., 411 N.E.2d 651. Further, we do not reweigh the evidence but consider only that evidence favorable to the appellee. Godfrey v. State (1978), 177 Ind.App. 644, 380 N.E.2d 621, trans. denied. Using this standard, we conclude that the trial judge acted well within his discretionary authority in determining that since; a) the duties of the police reserves in Albion are to provide crowd and traffic control at athletic events and parades, b) they have arrest powers only in connection with crowd disturbances and traffic violations, and c) juror Noe testified that his position as a reserve police officer would not prevent him from being impartial as a juror. Noe should not be removed for cause.
In an analogous case, Porter v. State (1979), 271 Ind. 180, 391 N.E.2d 801, the defense argued that the trial court had erred in refusing to remove for cause a juror who was a volunteer special deputy county sheriff. The Indiana Supreme Court disagreed, saying:
There was no evidence presented to show that this juror had any interest or any feeling one way or the other about this case. We ... cannot say that the court abused its discretion, after observing the interrogation of this juror, in overruling the challenge for cause directed to him. We do not find reversible error on this issue.
Id. 391 N.E.2d at 817. In this case, as in Porter, the challenged juror's link to the prosecution is so tenuous as to contain no implication of bias whatsoever, hence there is no evidence to suggest that the trial judge abused his discretion in denying the challenge of Mr. Noe.
Similarly, the trial judge acted reasonably in denying a defense challenge for cause of juror Deborah Ackerman, whose brother-in-law was a deputy sheriff. Like Noe, Ackerman possessed only a tenuous link to the prosecution, represented by a brother-in-law whom, according to her testimony, she seldom saw. Moreover, there was no evidence to indicate that Ackerman's brother-in-law was investigating this case (cf. Woolston v. State (1983), Ind., 453 N.E.2d 965, where the challenged juror's wife was an employee of the state police and had typed several evidentiary documents for the trial). Thus, Ackerman's link to the sheriff's department was too remote to support a presumption of bias in favor of the State. Smith v. State (1985), Ind.App., 477 N.E.2d 311. The court acted properly in denying a challenge of Ackerman for cause.
2) The court erred in denying a defense motion for a judgment of acquittal offered on the ground that the State failed to prove proper venue on counts X and XI, which alleged the commission of incest with Laura Andrews at Ed Chapman's residence in Noble County when, in fact, that residence is located in Whitley County. We disagree.
IC 35-1.1-2-1(d) (Burns Repl.1979) states: "If the commission of an offense is commenced in one county and is consummated in another county, trial may be had in either of the counties." The record indicates that Andrews formed, in Noble County, the criminal intent to commit incest and that he transported the victim from Noble County to Whitley County the next day and committed the offense. The victim testified that on her birthday, July 7, 1984, her father told her that he would give her a present the following day, but that she would not be able to receive it until she and her father were alone. On July 8, Andrews told her that he wanted her to accompany him to Ed Chapman's farm, as he had to help Chapman with farm work. She accompanied him to the Chapman farm where they had intercourse in the barn.
Andrews's actions in telling his daughter, whom he had a history of molesting, that he planned to give her a birthday present the following day, when they were alone, and in driving her the next day to a secluded locale, where they had intercourse, comprise a single chain of events. The conversation that occurred in Noble County between Andrews and the victim was integrally related to the incest that occurred the next day in Whitley County. Sears v. State (1983), Ind., 456 N.E.2d 390, 391.
In reaching this conclusion, we reject Andrews's argument that the State failed to show that he used any force or coercion in transporting the victim to Whitley County. Although Andrews did not abduct the victim, he possessed the power over her that a parent customarily possesses over a child and that commonly causes a child to accede to the parent's wishes. Moreover, the record indicates that Andrews had threatened to kill her if she revealed his incestuous behavior and that she believed he would indeed kill her under those circumstances because he had always carried out his threats of physical punishment in the past.
We conclude that Noble County was a proper venue in which to try Andrews on counts X and XI.
3) The court erred in denying the defense's motion for a judgment of acquittal, which had been offered on the ground that the State failed to prove that Andrews had engaged in any specific act of oral sex or intercourse with another victim prior to her twelfth birthday. We disagree.
The State presented sufficient evidence for the jury to find that Andrews did indeed engage in oral sex and intercourse with this victim prior to her twelfth birthday, thereby warranting his conviction for class B felony child molesting. The girl testified that Andrews engaged in these acts with her, at least weekly, from early in 1979 until February of 1985. She also testified that these acts occurred both before and after her twelfth birthday.
In light of this evidence, a directed verdict of acquittal was unwarranted in this case.
A directed verdict of acquittal can only be given where there is a total lack of evidence on some essential issue, or where the evidence is susceptible of only one inference, and that being in...
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