Bear v. State
| Decision Date | 02 July 2002 |
| Docket Number | No. 35A02-0107-CR-502.,35A02-0107-CR-502. |
| Parties | Jason Michael BEAR, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Susan K. Carpenter, Public Defender of Indiana, Amy E. Karozos, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.
Steve Carter, Attorney General of Indiana, Cynthia L. Ploughe, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
A jury convicted Jason Michael Bear of child molesting as a Class B felony.1 He was sentenced to fourteen years' imprisonment, with four years suspended and four years of probation. He now appeals, raising the following restated issues for our review:
I. Whether the trial court erred when it allowed the mother of a four-year-old prosecuting witness to testify about the prosecuting witness's out-of-court statements concerning sexual acts Bear performed on her.
II. Whether the trial court erred in refusing Bear's tendered instruction that the jury could acquit him based on the prosecuting witness's uncorroborated testimony.
III. Whether the trial court committed fundamental error by giving an instruction on child molesting by deviate sexual conduct that failed to correctly instruct the jury on the required mens rea.
IV. Whether the evidence was sufficient to convict Bear of child molesting by deviate sexual conduct.
V. Whether the sentencing factors cited by the trial court supported Bear's enhanced sentence.
We affirm.
In the spring of 2000, Bear was fifteen years old. On the evening of March 10, 2000, Bear and his younger brother babysat for four-year-old J.W. and her two-year-old brother. J.W. is the daughter of Kaycy—the fiancée of Bear's cousin Mike. When Mike and Kaycy left for the evening, J.W. wore a zip-up pink sleeper over a pair of underpants.
The couple returned home at two o'clock in the morning and found Bear and J.W. asleep on their bed in the master bedroom. J.W. was wearing only her underpants. The couple moved Bear to another room and left J.W. in their bed. When Kaycy awoke the next morning, Bear had left the house.
Later that day, Kaycy questioned Bear as to why J.W. had not been wearing her sleeper when they found her on their bed, and Bear responded that J.W. had had an "accident." Appellant's Appendix at 257. Kaycy thought this explanation was odd because J.W. had been toilet trained for two years and had not had an accident for some time. Before laundering J.W.'s sleeper and her underpants, Kaycy inspected them and noted that there was no smell of urine. Kaycy then spoke with J.W., who related that Bear had molested her on the night Bear babysat. Kaycy took J.W. to the doctor and called the police.
On April 10, 2000, the State filed a Petition Alleging Delinquency against Bear. On June 16, 2000, after a hearing, the trial court waived juvenile jurisdiction and allowed Bear to be tried as an adult. The State then charged Bear with two counts of child molesting—one as a Class B felony and the other as a Class C felony.2
At trial, J.W. testified that Bear "did bad touches" on the night he babysat. Id. at 298. She further testified that the bad touches happened on her mother's bedroom floor and that they involved Bear licking her "pooty." Id. at 299-301. J.W. testified that she uses her "pooty" to pee. Id. at 300. Kaycy testified that J.W. uses the term "pooty" to refer to her "vaginal area." Id. at 261. On re-direct, and over Bear's objection, Kaycy testified that J.W. had reported incidents of oral sex and fondling on the night of March 10. Bear did not testify, and the defense presented no witnesses.
Over Bear's objection, the trial court refused to give his tendered instruction that he could be acquitted based on the child's uncorroborated testimony, but did give the State's instruction that the child's uncorroborated testimony could support a finding of guilt. The court also instructed that to convict Bear, the State must prove that he knowingly or intentionally performed or submitted to deviate sexual conduct with J.W. when she was a child under fourteen years of age. Id. at 129, 386. Bear did not object.
Bear made a motion for a judgment of acquittal on the two charges, and the court granted the motion only as to the Class C felony. The jury found Bear guilty of Class B felony child molesting. During the sentencing hearing, the trial court identified seven aggravating circumstances and two mitigating circumstances and sentenced him to ten years' imprisonment, with four years added for aggravating circumstances. Those four years were then suspended, and the court ordered Bear to be placed on probation for four years after his release. He now appeals.
Bear first argues that the trial court committed reversible error when it allowed Kaycy to testify about J.W.'s statements to her concerning the acts of fondling and oral sex that Bear committed on the night he babysat. Bear argues that, because these statements were out-of-court statements made by J.W. to Kaycy and repeated by Kaycy at trial to prove the truth of the matter asserted, they constituted inadmissible hearsay. Appellant's Brief at 11. The context of the challenged testimony is relevant to our determination.
Here, on direct examination, Kaycy testified that Bear babysat until two o'clock in the morning on March 11 and that it was four days later that she questioned J.W. about what had happened on the night Bear babysat. She further testified that, upon hearing what J.W. had to say, she called the doctor and the police.
On cross-examination, defense counsel Donald Swanson questioned Kaycy about the number of days that passed before J.W. told her about the child molesting. The questioning went as follows:
Q And did [Bear] say that he had [J.W.] change her underwear herself?
A No.
Q No. Uh, [J.W.] didn't mention anything to you about it the next day?
Q So (inaudible) that would be the 12th. Then the 13th she didn't say anything about it. And the 14th she didn't say anything at all about it, (inaudible). And then March 15 uh, you were in the bathroom and she relates the incident (inaudible)?
On re-direct, deputy prosecutor Jamie Groves and Kaycy engaged in the following exchange:
Q There also—there was also a statement Mr. Swanson asked you if your daughter related an incident of fondling to you in the bathroom. Is that all she related to you is an incident of fondling in the bathroom?
Q What other type of touching besides fondling did [J.W.] relate to you?
The scope and extent of re-direct examination is within the sound discretion of the trial court, and a trial court's ruling will not be disturbed absent an abuse of that discretion. Meagher v. State, 726 N.E.2d 260, 266 (Ind.2000); Jones v. State, 600 N.E.2d 544, 547 (Ind.1992). Answering any new matter raised during cross-examination is within the scope of re-direct. Meagher, 726 N.E.2d at 266; Jones, 600 N.E.2d at 547. Further, "when a party raises a subject on cross-examination, it is permissible for the opposing party to pursue that subject on re-direct examination." Meagher, 726 N.E.2d at 266; see Jones, 600 N.E.2d at 547
; Kalady v. State, 462 N.E.2d 1299, 1309 (Ind.1984). Our supreme court has held that a defendant may not open an issue and have it closed at his convenience. Meagher, 726 N.E.2d at 266; Kalady, 462 N.E.2d at 1309.
Kaycy's answers on re-direct were elicited to fully respond to issues that had been raised by Bear. The State questioned Kaycy on the type of sexual activity or fondling only after Bear had raised that issue for the first time during Kaycy's cross-examination. Furthermore, the questioning on re-direct was limited, and Kaycy did not elaborate on her conversation with J.W. The trial court ruled that the State's questions were properly within the scope of the re-direct. We find that the trial court did not abuse its discretion in permitting the testimony.
Bear next contends that the trial court erred in giving an instruction on uncorroborated testimony over his objection. The standard by which we review challenges to jury instructions affords great deference to the trial court. Lewis v. State, 759 N.E.2d 1077, 1080 (Ind.Ct. App.2001), trans. denied (2002); Wooden v. State, 757 N.E.2d 212, 214 (Ind.Ct.App. 2001), trans. denied (2002). In reviewing a trial court's decision to give or refuse tendered instructions, this court considers: (1) whether the instruction correctly states the law; (2) whether there was evidence in the record to support the giving of the instruction; and (3) whether the substance of the tendered instruction is covered by other instructions that are given. Chambers v. State, 734 N.E.2d 578, 580 (Ind. 2000); Wooley v. State, 716 N.E.2d 919, 926 (Ind.1999). Jury instructions are not to be considered in isolation, but as a whole, and with reference to each other. Maslin v....
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