Brackens v. State
| Decision Date | 01 July 1985 |
| Docket Number | No. 983,983 |
| Citation | 480 N.E.2d 536 |
| Parties | William BRACKENS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). S 345. |
| Court | Indiana Supreme Court |
Terry A. White, Olsen, Niederhaus & Labhart, Evansville, for appellant.
Linley E. Pearson, Atty. Gen., Lee Cloyd, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant (Appellant) was convicted of child molesting, a class C felony, Ind.Code Sec. 35-42-4-3 (Burns 1984 Cum.Supp.), and found to be an habitual offender, Ind.Code Sec. 35-50-2-8 (Burns 1984 Cum.Supp.). The trial court sentenced him to an enhanced term of eight (8) years imprisonment for the child molesting conviction, further enhanced by thirty (30) years by virtue of the habitual offender determination. This direct appeal raises various contentions which we have reordered and restated as the following ten issues.
(1) Whether the trial court erred in refusing to excuse a juror for cause.
(2) Whether the admission of certain evidence of Defendant's prior conduct with the victim violated the rape shield statute as to Defendant, and whether the admission of such evidence was otherwise unduly prejudicial and inflammatory.
(3) Whether the trial court erred in permitting the State to impeach Defendant by introducing evidence of his past convictions during trial for the underlying felony, in that such evidence unduly prejudiced him during the habitual offender phase of the trial.
(4) Whether Defendant is entitled to a new trial because of certain comments made by the trial judge during the proceedings.
(5) Whether the trial court erred in refusing to instruct the jury on battery as a lesser included offense of child molesting.
(6) Whether the trial court erred in honoring the jury's request to rehear the victim's testimony made after it had retired for deliberations.
(7) Whether the trial court erred in admitting prison records demonstrating Defendant's two prior felony convictions.
(8) Whether the trial court erred in admitting expert testimony that Defendant's fingerprints matched those on the prison records.
(9) Whether a comment by the prosecutor during the habitual offender phase of the trial constituted prosecutorial misconduct warranting the declaration of a mistrial.
(10) Whether the trial court erred in utilizing Defendant's prior criminal record as an aggravating circumstance to enhance the sentence for the underlying felony, when these convictions were the basis for an enhanced sentence by virtue of the habitual offender determination.
We find no reversible error and affirm the judgment.
The seven-year-old victim testified that Defendant, her uncle by marriage, exposed himself and caressed her on November 26, 1982. The sufficiency of the evidence to sustain the conviction for child molesting is not challenged. Other facts relevant to specific issues are stated below.
Defendant contends that the trial court committed reversible error in refusing to dismiss a prospective juror for cause. The prospective juror stated, during voir dire examination, that he would tend to be prejudiced against a defendant who had been involved in a theft or similar crime. When Defendant challenged this prospective juror for cause the trial court denied the challenge on the grounds that Defendant was charged with child molesting, not a Error in the denial of a challenge for cause is waived, if the challenger does not exhaust his peremptory challenges. Foresta v. State (1980), 274 Ind. 658, 660, 413 N.E.2d 889, 890; Sutton v. State (1957), 237 Ind. 305, 307, 145 N.E.2d 425, 426.
"theft" crime, and thus the court held that Defendant had not shown that the juror would be prejudiced. Defendant argued that the prospective juror should have been excused for cause inasmuch as Defendant's predicate convictions for the habitual offender count were theft and armed robbery, and then excused the juror by exercise of a peremptory challenge. Defendant now argues that, because the prospective juror should have been excused for cause, Defendant was deprived of a peremptory challenge. He notes that he did use all of his allowed peremptory challenges; but it has not been shown that they had been exhausted at the time of the challenge in issue.
Defendant claims that the trial court committed reversible error when it allowed the State to present evidence of his past sexual conduct with the victim. He argues that the introduction of this evidence violated the rape shield statute, see Ind.Code Sec. 35-37-4-4 (Burns 1984 Cum.Supp.), and that such evidence was unduly prejudicial and inflammatory.
First, although certain language in the rape shield statute might be construed as preventing the State from introducing evidence of the victim's sexual history with anyone prior to the crime charged, 1 the statute's purpose obviously is to protect victims of these crimes, not the accuseds. Accordingly, our courts have held that the rape shield statute, with very narrow exceptions, prevents introduction of evidence of the victim's sexual history with persons other than the defendant, and that evidence of the defendant's prior sexual conduct with the victim is otherwise subject to our well-established commonlaw rules of evidence. See, Forrester v. State (1982), Ind., 440 N.E.2d 475, 479; Knisley v. State (1985), Ind.App., 474 N.E.2d 513, 515 (trans. denied ).
The evidence of Defendant's prior sexual abuse of the victim here was admissible under the "depraved sexual instinct" rule established by our courts. Although evidence of a defendant's past misconduct generally is inadmissible to establish guilt of the crime charged, evidence of past acts involving or showing a depraved sexual instinct are admissible to establish that a defendant committed a sex crime, and the trial court committed no error in admitting such evidence in this case. See, e.g., McKim v. State (1985), Ind., 476 N.E.2d 503, 505, quoting Grey v. State (1980), 273 Ind. 439, 445, 404 N.E.2d 1348, 1352; Knisley, 474 N.E.2d at 515-16. We also note that the State correctly emphasizes that much of the evidence of Defendant's past conduct with the victim was elicited during Defendant's cross examination of her, rather than during the State's direct examination.
Defendant argues that the trial court erred when it allowed the State to impeach him, after he had testified in his own defense, by introducing evidence of his past convictions for theft and robbery. He claims that introduction of such evidence during trial on the child molesting charge unduly prejudiced him during the habitual offender phase of the trial which followed his conviction on the child molesting Defendant relies on Lawrence v. State (1972), 259 Ind. 306, 286 N.E.2d 830, wherein we held that the habitual offender hearing must be bifurcated from the trial on the underlying felony, because disclosure of a defendant's prior convictions during a trial on both the underlying offense and habitual offender count would prejudice the jury to a defendant's detriment. Thus Lawrence held that, as a general rule, the State should not present, during trial on the underlying felony, evidence of prior convictions supporting the habitual offender count to be tried subsequently. Nevertheless Lawrence, read in light of later cases, does not aid a defendant where, as here, he testifies in his own defense and thereby puts his credibility in issue and thusly entitles the State to impeach his credibility. Theft and armed robbery, the Defendant's prior crimes introduced here, have been held to demonstrate a deceitful, dishonest character bearing upon credibility, and hence evidence of such crimes is admissible for purposes of impeachment under Ashton v. Anderson (1972), 258 Ind. 51, 279 N.E.2d 210, and its progeny.
charge. He also seems to argue that if such evidence were admissible during the trial on the child molesting count he should have been entitled to empanel a new jury for the habitual offender hearing, or to re-open voir dire examination in order to evaluate the impact of the disclosure of his past convictions. We do not agree with these contentions.
Thus, when Defendant took the stand in his own defense during trial on the child molesting charge he "opened the door" to evidence of his past convictions, notwithstanding the pending habitual offender proceeding. See, Williams v. State (1981), 275 Ind. 603, 419 N.E.2d 134, 137; see also Underhill v. State (1981), Ind., 428 N.E.2d 759, 765.
Defendant claims that certain comments by the trial judge during the trial so prejudiced him that he is entitled to a new trial. We do not agree.
Defendant cites us to two of the trial judge's remarks. One obviously was intended to reassure the victim, a child of tender years, while she was testifying. The other was made in the course of sustaining an objection addressed by the State to certain evidence that Defendant was attempting to present during the habitual offender phase of the trial and which the trial judge held, correctly, was not relevant to the issues then before the jury. Not only were these comments relatively innocuous but also the record discloses no objection nor request for any curative measure by Defendant at the time the allegedly prejudicial comments were made. Error not made apparent by appropriate in-trial action is not available on appeal. See, Marbley v. State (1984), Ind., 461 N.E.2d 1102, 1107 (Issue IV).
Defendant claims that the trial court erred in refusing to instruct the jury that they could convict Defendant of battery as a lesser-included offense of child molesting. The trial court properly refused such an instruction because it was not warranted under the evidence.
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