Best v. State

• Decision Date: 29 September 1982
• Docket Number: No. 3-382A48,3-382A48
• Parties: Alvin BEST, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Appellate Court

Page 1361

439 N.E.2d 1361

Alvin BEST, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 3-382A48.

Court of Appeals of Indiana,

Third District.

Sept. 29, 1982.

Timothy M. Bemis, Gregory Nicosia & Associates, Griffith, for appellant.

Linley E. Pearson, Atty. Gen., of Indiana, Palmer K. Ward, Deputy Atty. Gen., Indianapolis, for appellee.

HOFFMAN, Presiding Judge.

Alvin Best was found guilty by a jury of two counts of child molesting, class C felonies, ¹ and sentenced to concurrent periods of five years on each count. In appealing those convictions, Best raises the following issues:

(1) whether the evidence was sufficient to support the verdict of the jury;

(2) whether the trial court erred in overruling Best's motion to suppress and in admitting into evidence State's Exhibits B through W;

(3) whether the trial court erred in admitting certain testimony;

(4) whether the trial court erred in refusing to give defendant's Instruction No. 1; and

(5) whether Best should have been granted a new trial based on newly discovered evidence.

In reviewing the sufficiency of the evidence, the Court of Appeals neither weighs the evidence nor judges the credibility of the witnesses, but examines only the evidence most favorable to the State along with all reasonable inferences to be drawn therefrom. When there is substantial evidence of probative value supporting the verdict, the conviction will not be set aside. Jones v. State (1982), Ind.App., 435 N.E.2d 616.

Best did not deny having sexual relations with Susan, a fifteen-year-old runaway. However, relying on IC 1971, 35-42-4-3(e) (Burns 1979 Repl.), he asserted the defense that he reasonably believed she was sixteen or older at the time of the conduct.

Susan did not testify at the trial. However, photographs of Best and Susan were admitted into evidence. Susan's mother testified as to her daughter's age. Two other witnesses testified that Best knew they were under the age of sixteen when he became involved with them. Additionally, Rebecca Moore, who lived with Best, testified that she told Best that Susan was only fifteen before Best and Susan engaged in any sexual relations. Moore also testified that Best procured a false birth certificate for Susan.

Because Best testified he believed Susan to be at least sixteen years old, and Rebecca Moore testified that Susan sometimes tried to make people believe she was older than she was, Best would have this Court reweigh the evidence and find in his favor. This cannot be done. There was sufficient evidence presented to the jury, as the trier of fact, to enable it to find that Best was aware of Susan's age and to support his conviction.

Best next posits that the trial court erred in overruling his motion to suppress and in admitting into evidence State's Exhibits B through W, which were photographs of three juveniles, Diana, Vondell, and Susan. He argues that Exhibits B through U were irrelevant and immaterial since they were photographs of Diana and Vondell and had no connection with the alleged victim, Susan.

State's Exhibits B through U were photographs of the girls either nude or scantily clad. The exhibits were properly admitted within the depraved sexual instinct rule as showing Best's propensity for sexual involvement with girls under the age of sixteen. In an opinion involving an appeal from another conviction for child molesting, this Court stated:

"Generally, evidence of criminal activity other than that charged is inadmissible on the question of guilt. Cobbs v. State (1975), 264 Ind. 60, 338 N.E.2d 632. Yet it is now settled that such evidence is freely admitted to show depraved sexual instinct when sodomy, incest or a similar offense is charged. Gilman v. State (1972), 258 Ind. 556, 282 N.E.2d 816. The basis for this exception is that in prosecutions for depraved acts the complaining witness is not likely to be believed inasmuch as the evidence standing alone and entirely unconnected with anything which led to or brought it about would appear unnatural or improbable in itself. Grey v. State (1980), Ind., 404 N.E.2d 1348. Thus acts tending to indicate a depraved sexual instinct are admissible subject only to exclusion for remoteness. Bowen v. State (1975), 263 Ind. 558, 334 N.E.2d 691." Omans v. State (1980), Ind.App., 412 N.E.2d 305, at 311.

The photographs were not challenged for remoteness and were admissible as tending to indicate a depraved sexual instinct.

Best further alleges that State's Exhibits B through W were inadmissible in that the photograph album in which they were contained was the fruit of an illegal search and seizure.

Two undercover police officers, Novosel and Lawson, were sent to Best's residence in an effort to locate Diana, a fourteen-year-old runaway. They were met at the door by a young girl they recognized as Diana. They engaged in a conversation concerning "partying" or "having a good time there." They were allowed into the residence and told to wait for Rebecca. Novosel followed Diana into another part of the house while Lawson went into the living room and sat on the couch. Lawson observed an open photograph album on a coffee table in the living room. Shortly thereafter, the policemen placed Diana under arrest, and the photograph album was taken to police headquarters.

The instant case appears similar to another which was before this Court a short time ago, May v. State (1977), 173 Ind.App. 482, 364 N.E.2d 172. In May the policemen were investigating information they had received concerning a residence frequented by juveniles in their search for two missing young women. While still outside the house, the policemen observed through a lighted window, a set of scales and marijuana. This Court held:

"Indiana has allowed the warrantless seizure of evidence which was within the plain view of an arresting officer. Lindsey v. State (1965), 246 Ind. 431, 204 N.E.2d 357; Brown v. State (1959), 239 Ind. 358, 157 N.E.2d 174; Johnson v. State (1975), 163 Ind.App. 684, 325 N.E.2d 859. The standard followed has generally been one of reasonable police behavior under the particular circumstances of each case.

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"One of the critical elements involved in allowing the warrantless seizure of contraband from a private place, because it was observed in plain view, is that the seizing police officers must be justified in their having been in the particular place of observation.

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"In this context it is clear that the evidence which was in plain view was observed by an officer rightfully in a position to have such a view and as such should not be regarded as having been discovered through a search. Johnson v. State, supra (1975), 163 Ind.App. 684, 324 N.E. 859; see also, Alcorn v. State, supra (1970), 255 Ind. 491, 265 N.E.2d 413; United States v. Hanahan (7 Cir. 1971), 442 F.2d 649. Once the contraband fell into Officer Meeks' 'plain view,' it was subject to seizure and properly admissible in evidence. Brown v. State, supra (1959), 239 Ind. 358, 157 N.E.2d 174; Harris v. United States (1968), 390 U.S. 234, 236, 88 S.Ct. 992, 19 L.Ed.2d 1067." May, supra, 173 Ind.App. at 484-486, 364 at 173-174.

Lawson and Novosel testified they went to Best's residence to investigate a teenage runaway and possible prostitution and narcotics. They were admitted into the house by the teenage runaway, Diana, who testified she had "the run of the house." Once inside, the open photograph album containing photographs of Diana and others was observed in plain view.

The photograph album was subject to seizure and properly admissible by virtue of the plain view doctrine even though it was a warrantless seizure. The police officers were justified in being in the particular place of observation, since they were invited into the house and permitted to use the telephone which was in the living room where the photograph album was open and in their view.

Best's argument that the police officers' entry was gained by ruse is without merit. The United States Supreme Court held in Lewis v. United States (1966), 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312 that the government's use of decoys and undercover agents in certain instances is not only lawful but often is a practical necessity in enforcing the law and apprehending those engaged in criminal enterprise. Use of undercover police officers was permissible in the instant case since they testified that in addition to investigating the residence in a search for the teenage runaway, Diana, they were also conducting a correlative investigation into possible prostitution and narcotics violations.

For the above reasons, the trial court committed no error in overruling Best's motion to suppress or in admitting into evidence State's Exhibits B through W. ²

The next allegation of error raised by Best is the admission of testimony by Vondell. He contends her entire testimony was immaterial, and she should not have been allowed to testify.

The admissibility of evidence is within the sound discretion of the trial court. Clouse v. Fielder (1982), Ind.App., 431 N.E.2d 148. The Court of Appeals will reverse a trial court for abuse of discretion only when the trial court's action is clearly erroneous and against...