Barger v. State
| Decision Date | 07 October 1991 |
| Docket Number | No. 49A02-9008-CR-488,49A02-9008-CR-488 |
| Citation | 579 N.E.2d 621 |
| Parties | Michael G. BARGER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. 1 |
| Court | Indiana Appellate Court |
F. Allen Tew, Jr., Indianapolis, for appellant-defendant.
Jeffrey Modisett, Pros. Atty., Carol J. Orbison, Deputy Pros. Atty., Office of the Pros. Atty. of Marion County, Linley E. Pearson, Atty. Gen., Julie L. Ezell, Deputy
Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee-plaintiff.
We reversed Barger's conviction of child molesting as a Class D felony holding that the State failed to present sufficient evidence of probative value on the essential element of the purported victim's age to establish Barger's conviction beyond a reasonable doubt. Barger v. State, (1991), Ind.App., 576 N.E.2d 621. The State has filed this petition for rehearing asserting that our decision is erroneous in four (4) respects. Since none of the State's assertions have merit, we deny the State's petition.
As its first allegation of error, the State asserts:
The opinion of the Court erroneously and materially misstates the record as it relates to the time of the occurrence, in that it relies solely on the testimony of the alleged victim and omits critical testimony of other witnesses, to wit, Steve Amos, Shannon VanBuskirk, Diane McKay, Tom McKay, and Joni Chenoweth.
The State has provided no analysis or citation to the record in support of this argument. We note that the present petition is the third (3rd) opportunity the State has had to provide us with analysis and/or citation to the record to support its assertion that the evidence supporting Barger's conviction is sufficient. The State has failed to demonstrate the sufficiency of the evidence in its brief on direct appeal, during oral argument, and in this petition for rehearing. We observe that the prosecutor bringing this petition has provided more analysis on this issue to the newspaper than he has to this Court.
Understanding the well-settled standard of review for the sufficiency of the evidence, we diligently searched the record for evidence to support Barger's conviction before issuing our decision on direct appeal. We held oral argument on this case with express instructions that this issue was the subject of our concern. Nevertheless, in this opinion on rehearing, we will analyze the evidence most favorable to the State together with the reasonable and logical inferences to be drawn therefrom with special emphasis on the testimony of the witnesses listed by the State above.
At the outset, we note that our perception of the evidence in the light most favorable to the verdict is consistent with that of the State as expressed in its brief on direct appeal and at oral argument. The purported victim testified that she was molested by Barger when she was eleven (11) or twelve (12) years old. (R.p. 248) She testified that the molestation occurred "between January and February" of the 1987-1988 school year during the cold months after Christmas. (214, 215) She turned twelve (12) years old on February 22, 1988. (R.p. 210)
The purported victim testified repeatedly that she made two (2) visits to Barger's office during the 1987-1988 school year to complain about another student named Steve Amos who was teasing her. (R.p. 213, 218, 219, 239, 240, 241) She testified that she went to see Barger alone on one occasion and went in the company of two other girls (one of whom was Shannon [VanBuskirk] on another occasion. (R.p. 218, 219) She testified that Barger molested her during the visit she made alone to his office. (R.p. 216, 217) She testified that immediately after the molestation, Barger called Amos into the office and Amos apologized to her for teasing her. (R.p. 218) The purported victim testified that during the other visit to Barger's office (made in the company of Shannon and the other girl), Amos was again called down and was confronted by Barger and the three girls. (R.p. 219)
Shannon VanBuskirk testified that she was the purported victim's friend and was in the same class at school as the purported victim. (R.p. 251) Shannon testified that the purported victim reported the alleged molestation to her approximately a year Steve Amos testified that he was called down to Barger's office on one occasion and confronted by Barger, the purported victim, Shannon, and the other girl. (R.p. 268) Amos testified that this office visit took place in the springtime. (R.p. 269) In order to link Amos' "springtime" evidence to the molestation to conclude that the purported victim was at least twelve (12) years old at the time of the alleged molestation, the jury would have had to 1) disregard the purported victim's and Shannon's testimony that the purported victim made two (2) visits to Barger's office, and 2) disregard the purported victim's testimony, Shannon's testimony, and Amos' testimony that Shannon and the other girl were present during the one visit to Barger's office. In our review of the sufficiency of the evidence, we consider only the evidence most favorable to the State, together with all reasonable and logical inferences which may be drawn therefrom. Dixon v. State (1981), Ind.App., 425 N.E.2d 673. Considering the evidence in the light most favorable to the State, we have concluded that the jury could not have reasonably and logically drawn the inference that Amos' "springtime" visit to Barger's office was the visit during which the purported victim was molested. Therefore, as we concluded on direct appeal, Amos' testimony provides absolutely no evidence regarding the age of the purported victim at the time of the alleged molestation. 2
after it had allegedly occurred. (R.p. 255, 256) Shannon testified that she accompanied the purported victim and the other girl on a visit to Barger's office during which Amos was present. (R.p. 252, 253) Shannon testified that the purported victim told her the alleged molestation took place during a different visit (a visit that Shannon did not know about before the purported victim reported the molestation) made by the purported victim to Barger's office. (R.p. 255) Shannon's testimony fails to indicate when any alleged visit to Barger's office took place.
Diane McKay testified that the purported victim told her about a visit to Barger's office during which Amos was confronted. (R.p. 310) Diane McKay's testimony does not indicate when this, or any other, office visit took place.
The testimony of Tom McKay and Joni Chenoweth provides no evidence with regard to any visit made by the purported victim to Barger's office or the time of any alleged molestation.
The State next asserts:
The opinion of the Court contravenes a ruling precedent of the Court of Appeals, in that it has invaded the province of the jury by reweighing the evidence, and has failed to consider all of the evidence most favorable to the State, together with all reasonable and logical inferences which may be drawn therefrom. Dixon v. State (1981), Ind.App., 425 N.E.2d 673.
In Dixon, we stated our well-settled standard of review for the sufficiency of the evidence as follows:
When considering sufficiency challenges on appeal, we will not invade the province of the jury by weighing the evidence or judging witnesses' credibility. Our review is confined to considering only the evidence most favorable to the State, together with all reasonable 425 N.E.2d at 674, 675 (Citations omitted).
and logical inferences which may be drawn therefrom, in order to determine whether each element of the alleged offense has been proved beyond a reasonable doubt. The verdict will not be disturbed on the basis of insufficient evidence unless there is an absence of substantial probative evidence upon a material element of the offense, or the evidence is without conflict and leads to but one reasonable conclusion, which is contrary to the conclusion reached by the trier of fact.
In the present case, the evidence most favorable to the verdict indicates the purported victim was either eleven (11) or twelve (12) years old at the time of the alleged offense. As such, the evidence was entirely equivocal with regard to Barger's guilt of child molesting as a class D felony. The evidence indicates only that Barger may have committed the crime of child molesting as a class D felony as the jury was required to speculate (or guess) that the purported victim was twelve (12) years old and not eleven (11) at the time of the alleged offense.
When the uncorroborated testimony of the purported victim is at best equivocal with regard to the ultimate question of guilt, we must hold, as a matter of law, that the conviction cannot stand. Gaddis v. State (1969), 253 Ind. 73, 251 N.E.2d 658. The function of an appellate court in a criminal appeal is to determine whether or not evidence of guilt is substantial and of probative value, which requires more than a mere scintilla of evidence. Bowens v. State (1991) Ind.App., 578 N.E.2d 377. Evidence which only tends to support a conclusion of guilt is insufficient to sustain a conviction, as evidence must support the conclusion of guilt beyond a reasonable doubt. Vuncannon v. State (1970), 254 Ind. 206, 258 N.E.2d 639. 3
Contrary to the State's assertion, we did not invade the province of the jury by reweighing the evidence in this case. Nor do we believe we have failed to consider all the evidence. In vain, we have conducted several exhaustive searches of the record for any evidence supporting Barger's conviction. Moreover, the State has not directed our attention to any evidence that we have failed to consider. Our review of the record indicates that no substantial evidence of probative value supports the conclusion that the purported victim was at least twelve (12) years old at the time of the alleged molestation as required in a prosecution of class D felony child molesting. Ther...
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Barger v. State
...evidence of the victim's age was insufficient to sustain the conviction. Barger v. State (1991), Ind.App., 576 N.E.2d 621, reh'g denied, 579 N.E.2d 621. We grant transfer, vacate the opinions of the Court of Appeals, and affirm Barger's Barger raises the following issues on appeal: I. Wheth......