Baker v. State

• Decision Date: 07 September 2011
• Docket Number: No. 17S04–1009–CR–500.,17S04–1009–CR–500.
• Parties: Elmer D. BAKER, Appellant (Defendant below),v.STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

948 N.E.2d 1169

Elmer D. BAKER, Appellant (Defendant below),

v.STATE of Indiana, Appellee (Plaintiff below).

No. 17S04–1009–CR–500.

Supreme Court of Indiana.

June 23, 2011.Rehearing Denied Sept. 7, 2011.

Latriealle Wheat, Angola, IN, Attorney for Appellant.Gregory F. Zoeller, Attorney General of Indiana, Zachary J. Stock, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

On Petition To Transfer from the Indiana Court of Appeals, No. 17A04–0905–CR–299

RUCKER, Justice.

After a conviction for three counts of child molesting the defendant appealed contending, among other things, that his convictions must be vacated because they were not the product of a unanimous jury verdict. We granted transfer to explore this issue.

Facts and Procedural History

On July 3, 2006 the State charged then fifty-nine-year-old Elmer Dean Baker with two counts of child molesting as Class A felonies. The victims of the alleged offenses were two of Baker's grandchildren, C.B. and J.A. And the offenses were alleged to have occurred in “June and July of 2003.” Appellant's App. at 11. After a jury trial in June of 2007 the trial court declared a mistrial when the jury could not reach a verdict. Thereafter the State sought leave to amend the charging information to reflect the time period “from October 2000 through August 2003.” Appellant's App. at 76, 78. An additional count of child molesting as a Class C felony was also added. The alleged victim was A.H., a cousin of C.B. who is unrelated to Baker. This offense was alleged to have occurred “in or about 2002.” Appellant's App. at 80. Baker was also alleged to be a habitual offender.

Over Baker's objection the trial court permitted the amendments. And a retrial began on August 13, 2008. Evidence presented by the State is summarized in part as follows: C.B., who was eighteen years of age at the time of trial, testified that she was born in September 1990, Tr. 291; her cousin J.A. was born in December 1990, Tr. at 297; and that during the period between 2000 and 2003 she, J.A., and A.H. were close friends. Tr. at 297–98. C.B. also testified that during that period of time her family lived at various locations in DeKalb County including houses and apartments in Spencerville, Auburn, and Garrett, Indiana. According to C.B., Baker first began touching her inappropriately when she was about nine or ten years old. Tr. at 318. Specifically C.B. recounted an incident in which she and J.A. spent the night at Baker's apartment in Auburn which was next door to her own home where she lived with her parents. J.A. and C.B. were first sleeping in the living room but became frightened for some reason and went into Baker's room to lie down on his bed. C.B. testified that at that point “he started to touch us and he pulled me on top of him.... He [ ] pretended like he was having sex with me but we had, like I had my underwear on.... He like touched our vaginas.” Tr. at 321. She went on to say, “He like placed my hand on his penis and made like the motion of masturbating.” Id. at 322.

When C.B. was ten or eleven years old Baker, who was a long distance truck driver, often took C.B. with him on overnight truck trips several weekends during the summer months of 2001 and 2002. According to C.B. most of the “sexual stuff” happened “in the semi” and it happened “a lot.” Tr. at 322, 326. When asked by the prosecutor “what kind of stuff happened in the semi truck?” C.B. responded “my grandpa had sex, my grandpa had sex with me.” Tr. at 324. When asked “[w]hat other sex acts took place in the semi truck?” C.B. recounted an incident in which she and J.A. were together on one of the truck trips and both of them fellated Baker; on another occasion Baker digitally penetrated her and touched her breast. Tr. at 325.

By the summer of 2003 Baker owned a small house on Story Lake in DeKalb County. At that point C.B. was twelve years of age. On July 3rd of that year C.B. and J.A. were present for a family gathering and spent the night at Baker's house. At some time during the course of the night C.B. and J.A. went into Baker's room and according to C.B. “[u]m, he had sex with me.... Um, he inserted his penis into my vagina.” Tr. at 334. C.B. further testified, “he like touched us and had us touch him ... on the private parts.” Tr. at 335. The “us” referred to J.A. Tr. at 335. C.B. also testified that both she and J.A. “would take turns” fellating Baker. Tr. at 335.

C.B. recounted another incident occurring at a trailer that Baker owned at the North Pointe Crossing Mobile Home park just north of where she lived in Garrett. The precise date is unclear but the record suggests sometime between 2001 and 2003. C.B., J.A., and A.H. were present at Baker's trailer. The three girls went into Baker's bedroom where he pretended to be asleep. Tr. at 345. According to C.B. she and J.A. “took turns” fellating Baker, Tr. at 346; and all three of the girls “touch[ed] his penis.” Tr. at 347.

J.A., who was seventeen years of age at the time of trial, testified that C.B. is her step first cousin and that she refers to Baker as “Grandpa Dean.” Tr. at 545–46. She also testified that during 2000 to 2003 she, C.B., and A.H. were good friends. Tr. at 584. She offered testimony that tended to corroborate that of C.B. including an incident involving A.H. According to J.A. the three girls were present at Baker's house. Baker was present and pretending to be asleep. The three girls went into his bedroom where A.H. fellated Baker and J.A. played with his scrotum. “And then me and [A.H.] switched.” Tr. at 567. She further recalled that C.B. was on top of Baker and he was “sucking on her [breast].” Tr. at 568.

A.H., who was also seventeen at the time of trial, was the third of the alleged victims to testify. Although no specific dates were given, A.H. largely corroborated the testimony of C.B. and J.A. concerning the alleged incident occurring at Baker's house at the mobile home park. Among other things she confirmed that C.B. fellated Baker, and “then [J.A.] did it and then after that I tried it.” Tr. at 650. A.H. also recounted an occasion when she and J.A. were together on a trucking trip with Baker in his semi. The truck was equipped with a bed. While J.A. was in the passenger seat, A.H. went to sleep in the bed. A.H. testified that when she awoke Baker was lying next to her, and her clothing had been removed. Tr. at 653, 654. Baker rubbed his fingers over her “private area,” got on top of her, and “humped [her] stomach until he ejaculated.” Tr. at 654.

Baker testified on his own behalf. He acknowledged occasionally taking all of his grandchildren on semi trucking trips at one time or another, Tr. at 946, 963; and acknowledged owning a house on Story Lake. See generally Tr. at 963–65. However, Baker denied engaging in any sexual activity with C.B., J.A., or A.H. In response to his attorney's question “[a]nd you're saying to me that they are lying,” Baker responded, “[t]hey absolutely are.” Tr. at 950. Essentially he testified that he believed C.B. had organized the girls to offer false testimony as part of a conspiracy to get even with him after he caught C.B. in a car with a boy at three in the morning as a result of which “she got grounded.” Tr. at 950. According to Baker, about two weeks later C.B. started a “rumor” about him engaging in inappropriate sexual activity. Tr. at 950.

Following a five-day jury trial Baker was convicted as charged, and he pleaded guilty to the habitual offender allegation. The trial court sentenced him to a consecutive term of imprisonment on each of the three child molest counts for a total of seventy-six years. One of the counts was enhanced by thirty years for the habitual offender adjudication. The total executed term was 106 years.

Baker appealed framing his contentions as follows: (1) the convictions are not sustained by evidence of jury unanimity, (2) the trial court's ruling allowing amendment of the information was in violation of proscriptions under the state and federal constitutions against ex post facto laws; if the amendment can be lawfully applied in this case, it was not applied properly, (3) the trial court committed fundamental error in giving its preliminary instruction 6 and final instruction 5, and (4) defendant's convictions should be set aside due to ineffective assistance of counsel. Br. of Appellant at i. The Court of Appeals rejected Baker's arguments and affirmed the judgment of the trial court. See Baker v. State, 922 N.E.2d 723 (Ind.Ct.App.2010), aff'd on reh'g, 928 N.E.2d 890 (Ind.Ct.App.2010). We granted transfer to explore Baker's jury unanimity claim. In all other respects we summarily affirm the opinion of the Court of Appeals. See Indiana Appellate Rule 58(A)(2).

Background

Although the United States Supreme Court “has never held jury unanimity to be a requisite of due process of law,” Johnson v. Louisiana, 406 U.S. 356, 359, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972) (affirming a state robbery conviction based on a nine-to-three jury verdict),¹ this jurisdiction has long required that a verdict of guilty in a criminal case “must be unanimous.” Fisher v. State, 259 Ind. 633, 291 N.E.2d 76, 82 (1973) (rejecting argument that the trial court erred in instructing the jury that its verdict must be unanimous); Taylor v. State, 840 N.E.2d 324, 333 (Ind.2006) (“[W]hile jury unanimity is required as to the defendant's guilt, it is not required as to the theory of the defendant's culpability.”).

In general, the precise time and date of the commission of a child molestation offense is not regarded as a material element of the crime. Accordingly, this Court has long recognized “that time is not of the essence in the crime of child molesting. It is difficult for children to remember specific dates, particularly when the incident is not immediately reported as is often the situation in child molesting cases.” Barger v. State, 587 N.E.2d 1304, 1307 (Ind.1992) (...