Borkholder v. State, No. 50A03-8901-CR-15

Docket NºNo. 50A03-8901-CR-15
Citation544 N.E.2d 571
Case DateOctober 12, 1989
CourtCourt of Appeals of Indiana

Page 571

544 N.E.2d 571
Perry BORKHOLDER, Defendant-Appellant,
v.
STATE of Indiana, Plaintiff-Appellee.
No. 50A03-8901-CR-15.
Court of Appeals of Indiana,
Third District.
Oct. 12, 1989.

Page 573

Charles H. Scruggs, Kokomo, for defendant-appellant.

Linley E. Pearson, Amy Schaeffer Good, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

GARRARD, Presiding Judge.

Perry M. Borkholder appeals the verdict of the Marshall County Superior Court convicting him of eight counts of child molesting as a Class B felony and one count of child molesting as a Class C felony. He was sentenced to ten years on each of the Class B counts and to five years on the Class C count, all sentences to run concurrently.

Borkholder presents three issues on appeal, which we restate as follows:

1. Whether the trial court erroneously admitted Borkholder's confession into evidence because the confession either was not freely and voluntarily given or was the product of an illegal arrest.

2. Whether the trial court erroneously admitted into evidence the victim's tape-recorded pre-trial statement as part of the state's case-in-chief after she had already testified on direct examination.

3. Whether the trial court erred in not granting Borkholder's motion for judgment on the evidence at the conclusion of the state's case.

We affirm.

Facts

The victim was born March 6, 1975 and is Borkholder's daughter. After Borkholder's divorce in 1983, the victim would spend alternating weekends with Borkholder at his apartment in Bourbon in Marshall County.

Authorities first became aware that Borkholder had molested her in October 1987 when the victim told a school counselor. The welfare department notified Detective Charles Criswell of the Marshall County Sheriff's Department. Detective Criswell and a social worker from the welfare department visited the victim at her mother's home and tape recorded her statement.

In her statement the victim told Criswell that on each weekend of the visitation, Borkholder would remove her clothes, place her on the sink in the bathroom and place his penis in her vagina in such a way that it caused her pain. Borkholder would then discharge his semen into the toilet. She also said Borkholder had fondled her and related how her step-sister had said she had also been fondled by Borkholder.

The next day Criswell, without first obtaining a warrant, drove to Borkholder's place of employment in Nappanee, Indiana and arrested him. Criswell read Borkholder his rights and drove him to the jail in Plymouth, Indiana. Along the way, he advised Borkholder of the victim's allegations. At the jail, Detective Criswell obtained Borkholder's signature on the written waiver of rights form and tape recorded his statement. In his statement, Borkholder confessed to taking the victim into the bathroom, placing her on the sink, putting his penis on her vagina and masturbating. He said he discharged his semen into the toilet. He also admitted that he sometimes could have caused her pain.

At trial, the court admitted both taped recordings into evidence over Borkholder's objections and played them to the jury. At the end of the state's case-in-chief, Borkholder

Page 574

moved for a directed verdict (judgment on the evidence); the trial court denied his motion.

I.

A. Voluntariness of the confession.

Borkholder contends that his confession was inadmissible because it was obtained in violation of his fifth amendment rights. He supports his contention with testimony elicited from prosecution witness Detective Criswell during direct examination. The testimony was that Criswell had arrested Borkholder at his place of employment in Nappanee, Indiana, had read Borkholder his Miranda rights, and was in the process of driving him to the police station in Plymouth, Indiana. On the way, Criswell told Borkholder the reason for his arrest. The prosecution asked Criswell if Borkholder gave him any indication that he would be willing to talk about it, to which Criswell replied, "Well, he just--was that he wouldn't be willing to talk to me about it, but, ah--."

Borkholder contends that at this point he invoked his right to silence and cites Phillips v. State (1986), Ind., 492 N.E.2d 10, for the proposition that he could be subjected to further interrogation only when he himself initiated dialogue with police or made a knowing and intelligent waiver of the right he had previously invoked. We note at the outset that the Indiana Supreme Court expressly repudiated this dictum from Phillips v. State. Moore v. State (1986), Ind., 498 N.E.2d 1, 10. Complete and indefinite cessation of questioning is required only when the accused invokes his right to counsel. When the accused invokes his right to silence, the police must "scrupulously honor" his right to cut off questioning. Michigan v. Mosley (1975), 423 U.S. 96, 103, 96 S.Ct. 321, 326, 46 L.Ed.2d 313, 321; Moore v. State, supra. The police must cease questioning immediately and may resume questioning only after the passage of a significant amount of time and after giving a fresh set of Miranda warnings. Michigan v. Mosley, supra, 423 U.S. at 106, 96 S.Ct. at 327, 46 L.Ed.2d at 322; Vujosevic v. Rafferty (3rd Cir.1988), 844 F.2d 1023, 1029.

The trial court denied Borkholder's motion to suppress. Borkholder, represented by counsel, sought to suppress the confession because it was the fruit of an illegal arrest (a contention we address infra ) and because it was involuntary due to Borkholder's inability to read and write and the stress he was undergoing because of his wife's surgery. That the confession was obtained in violation of Borkholder's right to remain silent was not raised in the motion to suppress. Similarly, Borkholder objected to the admission of the taped confession at trial for the same reasons. He again did not object on the ground that Borkholder's right to silence had not been scrupulously honored. After Borkholder's objection was overruled, Criswell testified as to Borkholder's unwillingness to talk. Borkholder did not renew his objection or state any new grounds for objecting. The court then admitted the taped confession into evidence, saved Borkholder's objection, and played the taped recording for the jury.

Errors asserting the improper introduction of evidence at trial must have been raised at trial to be considered on appeal. This rule applies even to constitutional errors. Bennett v. State (1976), 168 Ind.App. 680, 681, 345 N.E.2d 254, 255. While Borkholder objected to the admission of the taped confession, he did not point out to the court the alleged error in obtaining his confession after he had invoked his right to silence. Therefore, he did not raise this error at trial and raises it for the first time on appeal. Cf. Bruce v. State (1978), 268 Ind. 180, 215, 375 N.E.2d...

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14 practice notes
  • Sears v. State, No. 49S00-9407-CR-608
    • United States
    • Indiana Supreme Court of Indiana
    • July 9, 1996
    ...probable cause to obtain an arrest warrant and also provide the probable cause necessary for a warrantless arrest. Borkholder v. State, 544 N.E.2d 571, 575-576 (Ind.Ct.App.1989). Because there was no reason to believe that Swanson was not telling them the truth, the police could accept as t......
  • Conley v. State, No. 31A01–1404–CR–157.
    • United States
    • Indiana Court of Appeals of Indiana
    • December 4, 2015
    ...778 N.E.2d 798, 802 (Ind.2002). Whether penetration occurred is a question of fact to be determined by the jury. Borkholder v. State, 544 N.E.2d 571, 577 (Ind.Ct.App.1989).[53] In Scott v. State, the court examined the meaning of “sex organ.” 771 N.E.2d 718, 724–725 (Ind.Ct.App.2002), disap......
  • Jorgensen v. State, No. 73A04-8908-CR-351
    • United States
    • Indiana Court of Appeals of Indiana
    • February 18, 1991
    ...objection is not ordinarily the type of error to which the doctrine of fundamental error applies." Borkholder v. State (1989), Ind.App., 544 N.E.2d 571, 575 (citing Bruce v. State (1978), 268 Ind. 180, 215, 375 N.E.2d 1042, Because the State had already been aware of Defendant's target prac......
  • Mendoza–Vargas v. State , No. 20A03–1201–CR–27.
    • United States
    • Indiana Court of Appeals of Indiana
    • September 20, 2012
    ...his right to remain silent. Nor did they re-advise him of his Miranda rights before re-initiating questioning. See Borkholder v. State, 544 N.E.2d 571, 574 (Ind.Ct.App.1989) (noting that police should cease questioning immediately and resume questioning only after the passage of a significa......
  • Request a trial to view additional results
14 cases
  • Sears v. State, No. 49S00-9407-CR-608
    • United States
    • Indiana Supreme Court of Indiana
    • July 9, 1996
    ...probable cause to obtain an arrest warrant and also provide the probable cause necessary for a warrantless arrest. Borkholder v. State, 544 N.E.2d 571, 575-576 (Ind.Ct.App.1989). Because there was no reason to believe that Swanson was not telling them the truth, the police could accept as t......
  • Conley v. State, No. 31A01–1404–CR–157.
    • United States
    • Indiana Court of Appeals of Indiana
    • December 4, 2015
    ...778 N.E.2d 798, 802 (Ind.2002). Whether penetration occurred is a question of fact to be determined by the jury. Borkholder v. State, 544 N.E.2d 571, 577 (Ind.Ct.App.1989).[53] In Scott v. State, the court examined the meaning of “sex organ.” 771 N.E.2d 718, 724–725 (Ind.Ct.App.2002), disap......
  • Jorgensen v. State, No. 73A04-8908-CR-351
    • United States
    • Indiana Court of Appeals of Indiana
    • February 18, 1991
    ...objection is not ordinarily the type of error to which the doctrine of fundamental error applies." Borkholder v. State (1989), Ind.App., 544 N.E.2d 571, 575 (citing Bruce v. State (1978), 268 Ind. 180, 215, 375 N.E.2d 1042, Because the State had already been aware of Defendant's target prac......
  • Mendoza–Vargas v. State , No. 20A03–1201–CR–27.
    • United States
    • Indiana Court of Appeals of Indiana
    • September 20, 2012
    ...his right to remain silent. Nor did they re-advise him of his Miranda rights before re-initiating questioning. See Borkholder v. State, 544 N.E.2d 571, 574 (Ind.Ct.App.1989) (noting that police should cease questioning immediately and resume questioning only after the passage of a significa......
  • Request a trial to view additional results

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