Babin v. State

• Decision Date: 22 February 1993
• Docket Number: No. 45A03-9205-CR-146,45A03-9205-CR-146
• Citation: 609 N.E.2d 3
• Parties: William L. BABIN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 3

609 N.E.2d 3

William L. BABIN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 45A03-9205-CR-146.

Court of Appeals of Indiana,

Third District.

Feb. 22, 1993.

Rehearing Denied April 20, 1993.

Transfer Denied May 27, 1993.

Scott L. King, King & Meyer, P.C., Gary, for appellant-defendant.

Linley E. Pearson, Atty. Gen., Gary Damon Secrest, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee-plaintiff.

HOFFMAN, Judge.

Appellant-defendant William L. Babin appeals his convictions for conspiracy to commit murder, a Class A felony, and child exploitation, a Class D felony.

The facts favorable to the judgment disclose that on May 18, 1990, the victim, appellant's 14-year-old adopted daughter, took some photographic slides to her school. Several of the slides showed the victim in various stages of undress, and when school authorities became aware of their existence, they contacted the police. The victim informed the police that appellant had started photographing her in late 1987 or early 1988, and appellant, a 9-year veteran of the Lake County Police Department, admitted to same in a statement to the police on May 18, 1990.

On February 12, 1991, Jonathon Hockenberry, an accused child molester, informed the police that appellant had paid him to give the victim a fatal overdose of drugs. Working with the police, Hockenberry arranged a meeting between appellant and Allan Strange, an undercover police officer posing as a contract killer, on February 20, 1991. During the meeting, appellant agreed to pay Strange $3,000.00 to kill the victim and gave him a wristwatch as partial payment. Appellant canceled the contract by phone on February 25, 1991, but told Strange he would receive $500.00 for his trouble. On April 19, 1991, the State filed an information charging appellant with child exploitation, child molesting, and conspiracy to commit murder. ¹

Appellant raises two issues for review:

(1) whether the evidence was sufficient to overcome appellant's abandonment defense to the conspiracy charge; and

(2) whether the evidence was sufficient to sustain appellant's conviction for child exploitation.

Appellant claims the evidence was insufficient to overcome his abandonment defense to the conspiracy charge. When reviewing a claim of insufficient evidence, this Court considers only the evidence favorable to the judgment and any reasonable inferences therefrom. If there was substantial evidence of probative value to support a finding of guilt beyond a reasonable doubt, this Court will affirm the conviction. Peak v. State (1988), Ind.App., 520 N.E.2d 465, 467 IND.CODE Sec. 35-41-3-10 (1988 Ed.) defines the defense of abandonment as follows:

"With respect to a charge under IC 35-41-2-4, IC 35-41-5-1, or IC 35-41-5-2, it is a defense that the person who engaged in the prohibited conduct voluntarily abandoned his effort to commit the underlying crime and voluntarily prevented its commission."

"[T]he defense of abandonment is available only to the person who physically and mentally abandons the enterprise and when that decision comes from within and is not due to extraneous factors." Peak at 467-468. The defendant must have renunciated the criminal plan prior to the completion of the underlying crime or before it became inevitable. Sheckles v. State (1986), Ind., 501 N.E.2d 1053, 1055.

Jonathon Hockenberry testified for the State that appellant paid him to give the victim a fatal overdose of drugs. Hockenberry also testified that he arranged the meeting between appellant and Officer Strange during which appellant agreed to pay Strange $3,000.00 to kill the victim. Although Strange testified that appellant phoned him to cancel the contract, he also testified that appellant sounded rehearsed or "scripted" when he did so. Moreover, due to the fact that all of appellant's conversations with Hockenberry and Strange were recorded and played for the jury, the jury was able to hear appellant's voice and form its own opinion as to whether he had a change of heart. The jury also knew that appellant was an experienced police officer who had knowledge of police investigative techniques.

From this evidence, it was reasonable for the jury to infer that appellant's "repudiation" was due to a fear of discovery rather than a change of heart. As previously discussed, an abandonment that is the product of extrinsic factors is not voluntary.

Appellant also contends the evidence was insufficient to sustain his conviction for child exploitation. IND.CODE Sec. 35-42-4-4(b) (1992 Supp.) defines the offense of child exploitation, in pertinent part, as follows:

"A person who knowingly or intentionally: (1) manages, produces, sponsors, presents, exhibits, photographs, films, or videotapes any performance or incident that includes sexual conduct by a child under sixteen (16) years of age; commits child exploitation, a Class D felony."

According to the statute, "sexual conduct" has the following meaning:

"sexual intercourse, deviate sexual conduct, exhibition of the uncovered genitals intended to satisfy or arouse the sexual desires of any person, sado-masochistic abuse, sexual intercourse or deviate sexual conduct with an animal, or any fondling or touching of a child by another person or of another person by a child intended to arouse or satisfy the sexual desires of either the child or the other person."

IND.CODE Sec. 35-42-4-4(a). Specifically, appellant contends the State failed to prove that he took the photographs with the intent to satisfy or arouse his or the victim's sexual desires.

The photographs show the victim in various stages of undress including several completely nude poses. In some of the photographs, the victim is touching her genitals, and in others, honey is being poured on her breast. The victim also testified that appellant fondled her during some of the photography sessions. Although the jury returned a verdict of not guilty on the child molesting charge, the evidence was sufficient to sustain appellant's conviction for child exploitation. The judgment of the trial court is affirmed.

Affirmed.

MILLER, J., concurs in Result with Opinion, in which GARRARD, J., concurs.

MILLER, Judge, concurring in result.

I agree with the majority that the evidence was sufficient to support Babin's conviction for child exploitation. However, I write separately to clarify the majority's conclusion that there is sufficient evidence in the Record to support the jury's rejection of Babin's defense of abandonment. ¹

Babin, age 32, and a nine year veteran of the Lake County Police Department, was arrested and charged with Child Exploitation, a class D felony. ² The charges were later expanded to include Child Molesting, a class D felony, ³ and Conspiracy to Commit Murder, a class A felony. ⁴ Following a five day trial held in January, 1992, Babin was acquitted of the Child Molestation charge, but convicted by the jury of Child Exploitation and Conspiracy to Commit Murder. The trial court sentenced him to one and a half (1 1/2) years for Child Exploitation and twenty (20) years for Conspiracy to Commit Murder, the sentences to run consecutively.

Additional facts most favorable to the judgment show that while awaiting trial, Babin met Jonathon Hockenberry, an accused child molester. Hockenberry lived with Babin for a period of time. In February, 1991, Hockenberry contacted...