Baxter v. State

• Decision Date: 25 April 1988
• Docket Number: No. 385S77,385S77
• Citation: 522 N.E.2d 362
• Parties: Richard Lee BAXTER, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 362

522 N.E.2d 362

Richard Lee BAXTER, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 385S77.

Supreme Court of Indiana.

April 25, 1988.

Dennis D. Graft, Robert C. Way, Kendallville, for appellant.

Linley E. Pearson, Atty. Gen., John D. Shuman, Deputy Atty. Gen., Indianapolis, for appellee.

SHEPARD, Chief Justice.

Appellant Richard Lee Baxter was accused of sexually abusing his two stepdaughters, S.W. and A.W. A jury found him guilty of two counts of child molesting, a class B felony, Ind.Code Sec. 35-42-4-3 (Burns 1985 Repl.), and two counts of incest, a class D felony, Ind.Code Sec. 35-46-1-3 (Burns 1985 Repl.). It also determined that he was an habitual offender, Ind.Code Sec. 35-50-2-8 (Burns 1985 Repl.).

The trial court sentenced Baxter to concurrent terms of twenty years on each count of child molesting and four years on each count of incest. Because Baxter's prior felony convictions were more than ten years old, the trial court enhanced his sentence as a result of the habitual offender finding by only five years, rather than the maximum thirty. Ind.Code Sec. 35-50-2-8(e).

Baxter raises four issues on direct appeal:

1) Whether the evidence is sufficient to support the convictions 2) Whether the trial court properly denied his motions for continuance of the trial and of the habitual offender proceeding;

3) Whether the trial court erred in excluding Baxter's alibi testimony because of a defective notice of alibi;

4) Whether the trial court erred by admitting evidence of uncharged criminal acts, and

5) Whether the victims were competent to testify.

I. Sufficiency of the Evidence

Baxter claims the evidence is insufficient to support his four felony convictions and the habitual offender finding. When reviewing such a claim, this Court will not reweigh the evidence or judge the credibility of the witnesses. Looking to the evidence and reasonable inferences therefrom which support the verdict, we will affirm the convictions if there is evidence of probative value from which a reasonable trier of fact could infer guilt beyond a reasonable doubt. Coleman v. State (1986), Ind., 490 N.E.2d 325.

The evidence at trial showed that Baxter had sexually abused his stepdaughters for several years before he was charged. The victims testified that he had sexual intercourse with them and required them to perform oral sex several times monthly during the year before trial. The girls reported the molestations to other family members, who confronted Baxter but did not report to authorities until shortly before he was charged. The victims revealed the attacks charged in graphic language during discussions with their social worker.

Baxter appears to contend that this Court for various reasons should not consider the testimony of the victims, the social worker or the relatives. Baxter first argues that the testimony of the social worker and the victims' relatives was based on hearsay. Each of those witnesses recounted statements made by the victims. The victims testified and were cross-examined at trial; therefore, their out-of-court statements, related by other witnesses, were admissible. Patterson v. State (1975), 263 Ind. 55, 324 N.E.2d 482.

Baxter also concludes that the testimony of S.W. should not be considered because her mother held her hand throughout S.W.'s testimony. Without elaborating, he claims that such conduct prejudiced the jury against him. The trial court had discretion to allow special measures aimed at putting the young child at ease on the witness stand. See Ricketts v. State (1986), Ind., 498 N.E.2d 1222. We fail to see how Baxter was unduly prejudiced, particularly considering that the victims' mother testified and denied the sexual abuse.

Baxter finally argues that the testimony of both victims should not be considered because it was inconsistent, improbable and the product of ill will. The victims' testimony, while sometimes lacking specificity, was generally clear. Their testimony was generally consistent with earlier statements which they gave to their social worker and to relatives. Convictions for incest and child molesting may rest upon the uncorroborated testimony of the victim. Snider v. State (1980), 274 Ind. 401, 412 N.E.2d 230. Thus, the evidence was sufficient to support the convictions for child molesting and incest.

With regard to the habitual offender finding, Baxter alleges that the State did not adequately prove that he was the same Richard Lee Baxter who, according to certified court records, was convicted of two felonies in the 1960s. While certified copies of judgments or commitments containing the same or similar name as the defendant may be introduced to prove the commission of prior felonies, there must be other supporting evidence to identify defendant as the same person named in the documents. This proof of identity may be in the form of circumstantial evidence. A sufficient connection between the documents and the defendant is made if the evidence yields logical and reasonable inferences from which the trier of fact may determine it was indeed the defendant who was convicted of the two felonies alleged. Coker v. State (1983), Ind., 455 N.E.2d 319.

The certified court documents introduced by the State showed a Richard Lee Baxter, born April 4, 1945, was convicted of assault and battery with intent to commit a felony in 1965 and forgery in 1968. Baxter admitted the forgery conviction but denied the other. However, Baxter's mother testified that he was born April 4, 1945, and that he was living with her at the time of both convictions. While Baxter's mother conceded that she did not appear at those court proceedings, she testified that she believed he had been convicted of assault and battery with intent to commit a felony and that she had discussed that case with her son. Such evidence was sufficient to identify Baxter as the person who was convicted of that crime.

II. Continuance

Baxter claims that the trial court erred when it refused to grant defense counsel's motions for continuance to allow more time to prepare for trial. Counsel entered his appearance on Baxter's behalf on April 25, and a trial date of August 7 was set. On July 5, the court, in response to a defense motion, authorized the defense within the next twenty days to take the depositions of the victims and three of their relatives. On July 23, defense counsel filed his first motion for continuance, indicating that he needed more time to prepare for trial because: (1) he had not been able to schedule any of the depositions or procure the information crucial to presentation of Baxter's alibi; (2) he could meet with Baxter only on weekends because of Baxter's employment, and (3) counsel had several court commitments in the following two weeks. Denying the motion, the trial court noted that the only discovery left uncompleted was the depositions, inasmuch as the court already had denied defendant's notice of alibi.

Defense counsel filed another motion for continuance on July 26. He alleged that the only date possible for depositions was August 1 and that the only court reporting service available on that date did not use tape recorders. Thus, counsel could not be able to review the depositions until they were transcribed. Counsel also repeated his claim of a hectic trial schedule. Although the trial court denied the motion, it postponed one of counsel's hearings in another case to reduce his court commitments, offered the courtroom facilities for taping of the depositions, and appointed defense counsel's law partner as co-counsel in Baxter's case.

Continuances to allow for preparation generally are not favored without a showing of good cause and will be granted only in the furtherance of justice. The trial court must decide whether good cause has been shown, and its ruling will be disturbed only if there is a clear showing of an abuse of discretion. In determining whether good cause exists, the trial court may review the circumstances of the case, as well as the allegations of the motion. Bryan v. State (1982), Ind., 438 N.E.2d 709. A continuance sought on non-statutory grounds is within the discretion of the trial court and will not be disturbed absent a clear showing of an abuse of that discretion. Parr v. State (1987), Ind., 504 N.E.2d 1014.

The trial court in this case accurately concluded that good cause had not been established. Counsel had nearly four months to prepare for trial. Although counsel waited until the week before trial to schedule depositions of the State's witnesses, the trial court, by allowing use of its own facilities, ensured that counsel would be able to review the depositions immediately after they were taken. Moreover, the appointment of co-counsel insured that preparation for Baxter's trial could proceed, despite defense counsel's allegedly hectic schedule.

Baxter also claims error from the trial court's denial of a continuance of the habitual offender proceeding. Noting that the information was amended to include the habitual offender count three days before trial, Baxter claims he had inadequate time to prepare a defense to that allegation.

The addition of an habitual offender charge is permissible at any time so long as it does not prejudice the substantial rights of the defendant. A showing of such prejudice is required before a motion for continuance must be granted. Russell v. State (1986), Ind., 487 N.E.2d 136.

Baxter received notice of the two prior convictions through discovery provided by the State in June 1984. The State was unable to obtain certified copies of those convictions until August 1, but immediately thereafter drafted a letter to defense counsel indicating that it would use those documents at trial. The State proceeded to file the habitual offender count two days later. The trial court concluded that Baxter was on notice as early as June that the State might amend the information to include an...