Arndt v. State
| Decision Date | 09 November 1994 |
| Docket Number | No. 79S04-9411-CR-1065,79S04-9411-CR-1065 |
| Parties | James F. ARNDT, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Supreme Court |
Timothy P. Broden, Lafayette, for appellant.
Pamela Carter, Atty. Gen., Suzann Weber Lupton, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellees.
A jury convicted James F. Arndt of committing Class B felony child molestation, I.C. § 35-42-4-3(a), and Class C felony child molestation, I.C. § 35-42-4-3(b). He was sentenced to ten years imprisonment for count I and four years imprisonment for count II, to be served concurrently. In a memorandum decision, the Court of Appeals (Fourth District) affirmed the convictions and sentences. Appellant petitions for transfer of his appeal to this Court. We grant transfer.
On November 18, 1991, Sharon M. was preparing to bathe J.M., her three-year-old son. Sharon placed J.M. in the bathtub, but J.M. jumped out of the tub, saying that his butt hurt him. Sharon asked J.M., J.M. responded, "Yes." When Sharon questioned J.M. further, J.M. stated that "Greasy Jim" had touched J.M. "Greasy Jim" is a nickname for James Arndt, appellant in this case. Upon additional inquiry, Sharon determined that appellant had also touched J.M.'s penis. Leopoldo, J.M.'s Sharon reported the alleged child molestation to the Lafayette Police Department. Lieutenant Bryan Baker arrived at Sharon's apartment and directed her to take J.M. to Home Hospital in Lafayette for an examination. Sharon, Betty Borders, and J.M. went to the hospital, where Dr. Richard Shoemaker conducted a physical examination. Shoemaker observed that J.M. became extremely tense when Shoemaker began to examine J.M.'s rectal area. However, Shoemaker reported that he found no physical signs of damage. Following the examination, Sharon went to the police station and gave a statement.
father, came from an adjoining room and was alerted by Sharon of the accusations against appellant. Within moments, Leopoldo separately posed the question to J.M., "What did he [Jim] do to you?" J.M. answered, "He stuck his finger up my butt." Appellant had lived with Betty Borders, Sharon's mother, for approximately one month
The next day, Detectives Loy and Withers of the Lafayette Police Department questioned appellant. Appellant stated that he had pinched J.M. on the penis and had rubbed J.M.'s penis in order to check whether J.M.'s diaper was wet. Appellant also stated that approximately one month prior to J.M.'s complaint, appellant had reached down and pinched J.M. on the butt, and that appellant's finger "went up" J.M.'s butt by accident.
The Tippecanoe County Prosecutor's Office filed informations charging appellant with two counts of child molesting. The State filed a notice of intent to use the statements of J.M. to his mother under I.C. § 35-37-4-6. The defense filed a motion in limine concerning testimony relating to depraved sexual instinct. At a pre-trial hearing pursuant to the statute, the trial court determined that the statements J.M. made to his parents were admissible. Prior to trial, the State amended its information to include a third count. Count III was a charge of child solicitation, I.C. § 35-42-4-6, committed against Ray Eldon Meyers. Following a jury trial, appellant was convicted of counts I and II child molesting. The State dismissed count III. Appellant received a sentence of 10 years imprisonment for count I, and 4 years imprisonment for count II, with the terms to run concurrently.
Appellant presents three issues for our review:
I. whether the trial court erred when it admitted the J.M.'s out-of-court statements via the testimony of his mother Sharon and his father Leopoldo;
II. whether the trial court erred in admitting evidence of appellant's depraved sexual instinct; and
III. whether sufficient evidence was presented at trial to support the judgment of conviction.
J.M. was three years of age at the time he made the statements. He was four years of age at the time of trial. Appellant was seventy-two years old. J.M. did not testify at trial. At trial, Sharon testified:
[J.M.] jumped out of the tub and was running through the house saying that his butt hurt him.... I said, "Why is your butt hurting you?" And I said, "Did--Did somebody touch you there?" ... and he said yes.... I asked him who had touched him there and he said Greasy Jim, which is Jim Arndt.... I started asking him, "Where did he touch you?" ... I asked him if he touched him, you know, down there around his private parts, you know, his wee-wee, and he said yes.... [H]e told me and my mother that Jim Arndt had stuck his finger up his rear end.
Appellant's counsel objected to the introduction of J.M.'s accusatory statements in the following manner:
[I]f these statements are being offered for the truth of the matter asserted, that is as substantive evidence, in this case then we would object to the hearsay statements of [J.M.] on the basis of the time, content and circumstances of these hearsay statements do not demonstrate their reliability and also that Mr. Arndt has been denied the opportunity to confront, his right to confrontation, because it was impossible to thoroughly cross examine [J.M.] concerning any of these statements that he had previously made.
The trial court overruled this objection. The trial court also overruled a hearsay objection to J.M.'s accusatory statements as offered by the father, Leopoldo.
Hearsay is a statement made out-of-court that is offered into evidence to prove the truth of the fact or facts asserted in the statement itself. Ind.Evidence Rule 801(c); 1 Craig v. State (1994) Ind., 630 N.E.2d 207. In the present case, J.M.'s accusatory statements fall within this definition of hearsay. They were made out-of-court and both parents repeated the statements at trial, for the purpose of proving the facts asserted in the out-of-court statements, namely that appellant had molested J.M. Such hearsay is not admissible at trial unless it fits within some exception to the hearsay rule. Evid.R. 802 and 803; Craig, 630 N.E.2d 207. Exceptions to the hearsay rule exist, because the manner in which certain out-of-court statements are made virtually guarantee their reliability.
The trial court admitted this testimony pursuant to I.C. § 35-37-4-6. In essence, this statute recognizes an exception to the hearsay rule. These statements are arguably admissible under the excited utterance exception, presently Evid.R. 803(2), and physical sensation exception, presently Evid.R. 803(3). This appeal does not consider those possibilities, but deals with the statutory exception the trial court applied.
The history, purpose, and constitutionality of this statute, first enacted in 1984, has been given extensive consideration. Miller v. State (1987), Ind., 517 N.E.2d 64 (Miller I ); Miller v. State (1988), Ind., 531 N.E.2d 466 (Miller II ). Miller I dealt with a videotaped statement of a non-testifying five-year-old, taken under questioning by investigating officers, without the presence of the defense, and where the child was unavailable to testify at trial, due to the potential for injury from trial participation. Miller II dealt with an audiotaped statement of a non-testifying three-year-old, taken under questioning by investigating officers and workers, without the presence of the defense, and where the child was unavailable to testify at trial, due to incompetence as a witness under the then existing statute. Here, although J.M. did not testify at trial and was unavailable due to incompetence as a witness (as in Miller II ), J.M.'s statement was made under entirely different circumstances than in either Miller case, and was followed, before trial, by a hearing of special character.
At the immediate point at which J.M. made these statements, he was naked and wet, in the process of being bathed by his mother, and expressing pain, both in words and by body language. The first "who" question was answered at this point and the second followed shortly. The trial court noted these circumstances, and the fact that J.M. and appellant had been friendly to this point, in making its findings of reliability per the statute. Between arrest and trial, the admissibility hearing was conducted by the court in the full trial mode. The hearing did not take place in front of the jury. J.M. did not, of course, feel the compunction of the oath. He did, however, with difficulty, with variation, and with some body language, repeat his former accusations. There was full physical face-to-face confrontation between appellant and J.M., and defense counsel conducted an untrammeled cross-examination. This questioning produced little direct response. The hearing was audiotaped. We conclude that the statutory procedure was scrupulously followed, and that the application of the statutory exception in these circumstances, leading to the admission of J.M.'s bath-time statements, was consistent with our hearsay rule.
Appellant claims that the use of this statement at trial was contrary to the guarantees of the federal constitutional confrontation rights. Absent from the circumstances are (1) confrontation with a declarant at the time competent as a witness, and (2) confrontation that is observable by the trier of fact. In order for hearsay exceptions not to offend the Confrontation Clause of the Sixth Amendment to the United States Constitution, the hearsay evidence must possess substantial indicia of reliability. Sumpter v. State (1974) 261 Ind. 471, 306 N.E.2d 95 (citing California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970)). Reliability can be inferred in cases where the evidence falls within a firmly rooted exception to the hearsay rule, or where there is a showing of "particularized guarantees of...
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