Brewer v. State

• Decision Date: 08 November 1990
• Docket Number: No. 49S00-8812-CR-1007,49S00-8812-CR-1007
• Citation: 562 N.E.2d 22
• Parties: Jessie Ray BREWER, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 22

562 N.E.2d 22

Jessie Ray BREWER, Appellant, v. STATE of Indiana, Appellee.

No. 49S00-8812-CR-1007.

Supreme Court of Indiana.

Nov. 8, 1990.

S. Sargent Visher, Choate, Visher & Haith, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Louis E. Ransdell, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-Appellant Jessie Ray Brewer was convicted of one count of Child Molesting, a Class C felony, and one count of Child Molesting, a Class B felony, for which he was sentenced to five (5) and twenty (20) years, respectively. The trial court ordered the sentences to run concurrently for a total of twenty (20) years. He appeals directly to this Court and raises the following three issues:

1. whether there was sufficient evidence to support the convictions;

2. whether the trial court erred in admitting evidence of uncharged crimes under the depraved sexual instinct rule; and

3. whether the sentence imposed by the trial court was excessive.

The facts most favorable to the verdict show that the victim, L.D., lived with her grandmother at all times pertinent herein. She was ten (10) years old at the time of trial. L.D. shared a bedroom in her grandmother's house with her younger brother Gregory and two of her grandmother's children, Eric and Derek, twin boys who were approximately two (2) years younger than her. There were two bunk beds and a couch in this bedroom, which was located upstairs. The twins shared the top bunk bed, L.D.'s brother slept in the lower bunk bed and L.D. slept on the couch. Appellant was the grandmother's live-in boyfriend. He had a daughter from a previous marriage who was fourteen (14) years old at the time of trial.

On a weekend in February of 1987, Appellant picked up his daughter and brought her to L.D.'s grandmother's house for an overnight visit. Appellant gave his daughter and L.D. permission to watch a movie on the VCR located in the bedroom he shared with L.D.'s grandmother. Appellant turned on the movie, which L.D. described as "nasty" with "naked people on it." Appellant pulled a cover over both of the girls. L.D. testified appellant tried to "feel" her and that he put his hand almost underneath her clothes where she put her belt at, her waist. Appellant's daughter testified that he touched L.D. on her "private parts." L.D. then got off the bed and onto the floor where she witnessed appellant undress himself and his daughter, who he then touched on her "private," between her legs. Appellant also asked his daughter to perform fellatio on him. She complied.

Sometime thereafter, while L.D. tried to sleep on a couch downstairs, appellant took her pants down and touched her "behind" with his hand and with his "private." L.D. testified this latter touching hurt her. Appellant told L.D. "it's our secret" and if she ever told anyone, he would hurt her grandmother.

A few months later, during her summer vacation after the second grade, there was a third incident which took place on a couch in the bedroom she shared with the other children in her grandmother's house. L.D. testified that while she was asleep and lying on her stomach, appellant pulled down her pants and "felt on her" with his hand. The other children who shared the bedroom were also present, but apparently asleep. Eric, who was seven (7) years old at the time, was in the bedroom and pretended to be asleep when this occurred. Eric testified at trial that appellant came into the room and turned out the light, went over to the couch, pulled down L.D.'s pants, got on top and then pulled down his own pants. He pulled his pants back up and went to his room. Then he came back in a second time with his pants on and got on top of her again.

The very next day, Eric told L.D. that he had witnessed the entire episode. Eric then told his sister (L.D.'s mother) what had happened the night before. L.D.'s mother confronted appellant and immediately called the police.

I.

Appellant urges us to override the jury's guilty verdict in this case because the testimony was so incredibly dubious or inherently improbable that no reasonable person could believe it, citing Shippen v. State (1985), Ind., 477 N.E.2d 903. Appellant argues a consideration of the totality of the evidence establishes its dubiousness because: testimony came from a very young child as to what took place; there was a lapse in time as to when the crime was reported; there was a contradiction as to the source of the reporting whether it was the alleged victim or a younger member of the family; and there was a lack of specifics as to what exactly took place. We find that none of these factors, alone or in combination, establishes the testimony presented in the trial court below was so incredibly dubious or inherently improbable that no reasonable person could believe it.

First, regarding the testimony from a very young child, this Court has held the trial court's determination of a child's competency is presumed valid and will be reversed only for a manifest abuse of discretion. Hodges v. State (1988), Ind., 524 N.E.2d 774, 780. This is so because the trial court has the opportunity to observe the child's intelligence, demeanor and maturity. Id. There were three young children who testified at this trial: Eric, age eight (8), L.D., age ten (10), and appellant's daughter, age fourteen (14). Appellant does not specify which young child's testimony he is challenging, nor does he indicate the grounds upon which he is challenging the testimony, other than it came from a young child. Each child demonstrated he or she knew the difference between telling the truth and telling a lie, and each promised to tell the truth. Appellant has failed to demonstrate the trial court abused its discretion in finding these children were competent to testify at trial.

Next, appellant argues the evidence, taken as a whole, was dubious because there was a lapse in time as to when the crime was reported and there was a contradiction as to the source of the reporting. It was unclear, appellant argues, whether the crimes were reported by the alleged victim or a younger member of the family. The fact that there was a lapse of time in reporting these acts of molestation comes as no surprise to this Court, especially when we consider the appellant, who lived in the same house as the victim, told her "it's our secret" and threatened to hurt her grandmother if she ever told anyone about what had happened. Indeed, it is clear from the evidence presented that L.D. was truly a captive in her own home. The first person L.D. was able to confide in was a cousin who lived outside the home. This cousin testified at trial that L.D. had been wanting to spend time at her house for awhile. Finally, during summer vacation, L.D. visited her cousin for a week and told her there was a time when appellant had approached her and, although she really did not know what he had done, she knew he had done something to her. The cousin, who did not want to get involved, told L.D. she had to tell somebody about it, at least her grandmother or great grandmother. The first family member, other than L.D. herself, to take any substantial steps to protect L.D. was Eric, then seven (7) years old, who told L.D.'s mother the very next day what he had witnessed in the bedroom he shared with L.D. It was L.D.'s mother who then confronted appellant and immediately reported the crime to the police. There simply was no lapse of time between this last instance of molestation and reporting it to the police. Moreover, despite appellant's protestations to the contrary, there is no contradiction in the record as to the source of the reporting. Both L.D. and Eric reported to a family member what was happening; L.D.'s mother was, apparently, the only one with the courage to confront appellant and immediately summon the police. Given the nature of these crimes, this course of events is not inherently improbable, nor was the testimony presented incredibly dubious. Accordingly, we will not impinge upon the jury's responsibility in evaluating the credibility of these witnesses. Stewart v. State (1990), Ind., 555 N.E.2d 121, 125-26 n. 3 (citing Bedwell v. State (1985), Ind., 481 N.E.2d 1090, 1092).

Finally, appellant contends, the evidence presented was not specific enough as to exactly what took place. We do not agree. L.D. was under twelve (12) years of age when these events took place. L.D. made it clear in her own words that appellant had touched her while in bed with his daughter as he watched a pornographic film. This touching or fondling was clearly done with the intent to arouse or to satisfy his sexual desires, and constituted child molesting, a class C felony. IC 35-42-4-3(b). L.D. related the second instance in her own words which demonstrated appellant committed an act involving his sex organ and the victim's anus. This constituted class B child molesting. IC 35-42-4-3(a). These acts took place in the victim's own home, as charged in the information, on or about the month of February, 1987. This Court has approved a lack of specificity as to time in cases of this nature where instances of child molestation have extended over a period of years. See, e.g., Hodges, 524 N.E.2d at 779 (information charging child molestation occurred from August 1982 to September 1984 held to have stated the offenses with sufficient certainty, as required by IC 35-34-1-2(a)(5) and (6)). We find the evidence in this case was sufficiently specific both as to the acts themselves and the time frame in which the acts were committed.

In reviewing a challenge to the sufficiency of the evidence we neither reweigh the evidence nor judge credibility. We examine only the circumstantial and direct evidence most favorable to the State together with all reasonable inferences to be drawn therefrom. If there is substantial evidence of probative value to support the conclusion the defendant is guilty beyond a reasonable doubt, the...