Brooks v. State

Decision Date25 September 1990
Docket NumberNo. 20S00-8801-CR-25,20S00-8801-CR-25
Citation560 N.E.2d 49
PartiesFrederick Carl BROOKS, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

J.J. Paul, III, Indianapolis, for appellant.

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

DeBRULER, Justice.

Appellant was tried to a jury and found guilty of two counts of child molesting, a Class A felony, I.C. 35-42-4-3(a). The trial court imposed a thirty-year sentence for each conviction and ordered that the sentences run consecutively, resulting in an executed sentence of sixty years. Appellant now brings this direct appeal, claiming that the evidence was insufficient to support his conviction, that prosecutorial misconduct warranted a mistrial, and that his sentence is not appropriate.

The following evidence was adduced at trial: On July 15, 1986, B.B. was an eleven-year-old boy living in Goshen. He testified that at about 11:45 a.m. on that day, following a morning Little League doubleheader, he was riding his bike on a bike trail in a wooded area in Shanklin Park. As he approached a footbridge, a man walking toward him asked if the games were over. The two continued moving toward each other as B.B. responded that they were. The man grabbed B.B. and put a gun to his head. After the boy's bike was put in the weeds, the man directed B.B. to start walking into the woods. B.B. offered the man his money, to which the man replied, "I don't want your money, just do what I say and I won't hurt you." He told B.B. where to stop, then grabbed the boy's genitals. B.B. told him to stop, and the man again put the gun to him and said, "Just let me do what I want, you won't get hurt." He performed fellatio on the boy, then forced B.B. to perform fellatio on him. He then told B.B. to turn around and count to 1,000 or wait for five minutes. He also made B.B. give his name and said he could come and get B.B. again if he told anyone about the incident.

Shortly following the assault, B.B. described his attacker as a man who was about thirty, had curly brown hair and a moustache, and was wearing blue jeans and a stained, green t-shirt. He also told police investigators that the man was acne-scarred and might have had a couple of teeth missing. B.B. testified at trial that his attacker held the gun in his left hand. Appellant was thirty-four years old at the time of trial, and he has brown hair and a moustache, but has no acne scars or missing teeth. He is left-handed. In his trial testimony, B.B. pointed out appellant as his attacker.

R.F., a ten-year-old Michigan boy who had been molested, was in a grocery store with his mother in February of 1987, and he told her that his attacker was in the store. She followed the man out of the store and copied his license plate number, which she then turned over to the police. The vehicle was registered to appellant. A lineup was held on February 18, 1987, which B.B. attended. He identified appellant as his attacker at the lineup and again at trial.

Appellant was employed by an exterminating company in July of 1986, and he interposed an alibi defense that he was at a worksite in a neighboring town at the time of the attack. He testified that he arrived at the home of Patricia Rhoades in Nappanee around 11:00 a.m. on July 15 and left at 11:55. He stated that Rhoades left for work between 11:10 and 11:15. Appellant testified that he then drove to a restaurant for lunch and was at his next worksite in Union, Michigan at 1:00 p.m. Rhoades was called by the State and testified that appellant arrived at her home at 10:50 that morning and left at 11:20. She stated that her testimony was based on references to stages in a television game show which she always watched while getting ready for work and which she had on while appellant was there. She also stated that she had to be at work at 11:30, that she usually left at 11:20 or so, that appellant left when she did, and that she was on time to work that morning.

Captain Bickel of the Goshen Police Department testified that he had timed the most probable route one would take from Rhoades's home in Nappanee to Shanklin Park in Goshen, observing all speed limits posted over the 15.1 mile route. Through his testimony, a diagram was entered into evidence which illustrated that, given a departure time of 11:20, appellant would have been able to drive to Shanklin Park and station himself along the bike trail in time to intercept B.B. at 11:45. Bickel also testified that there was an alternate route between the two critical points. He stated that it had not been timed, but that he believed it was one to three minutes faster than the diagrammed route. There was also evidence that the mileage on appellant's company car on July 15 was 152 miles and that the route described on his timesheet for that day covered 116.2 miles.

The State presented the testimony of three other boys who had been molested in parks in northern Indiana and southern Michigan in 1986. Each of these boys had been accosted by a man with a gun, who ordered them not to yell or run and they would not be hurt. D.M., 11, testified that he was molested as he walked through Island Park in Elkhart on his way to school at around 7:45 a.m. on January 6, 1986. He stated that his attacker performed fellatio on him, then ordered the boy to do it to him, but relented for some reason and left after telling D.M. that he knew where he lived and would come and get him if he told. D.M. also testified that his attacker held the gun in his left hand. J.J., 15, testified that as he was riding his bike in Shanklin Park at around noon on April 19, 1986, a man engaged him in conversation near the same footbridge where B.B. was assaulted, then grabbed him and threatened him with a gun. J.J.'s hands were tied with his own shoelaces, then the man stuck his hand into the boy's pants and fondled him. Before making his escape, the man told J.J. not to turn around for five minutes. R.F., the boy whose identification precipitated the lineup, testified that on June 16, 1986, he and his friend, L.D., were forced to submit to and perform fellatio on the man. This assault occurred at French Field in Niles, Michigan between 2:00 and 3:00 p.m. At trial, D.M., J.J. and R.F. identified appellant as the perpetrator of the crimes committed against them. L.D. was not called by either party to testify at trial.

On appeal, appellant raises several challenges to the sufficiency of the evidence supporting his convictions and to the propriety of certain events leading to his arrest and conviction. The standard for reviewing sufficiency claims is well settled. On appeal, this Court does not reweigh the evidence nor judge the credibility of the witnesses, but instead looks to the evidence most favorable to the verdict and to all the reasonable inferences to be drawn therefrom. If, from that viewpoint, there is evidence of probative value from which a reasonable trier of fact could infer guilt beyond a reasonable doubt, the conviction will be affirmed. James v. State (1976), 265 Ind. 384, 354 N.E.2d 236. The testimony of a victim, even if uncorroborated, is ordinarily sufficient to sustain a conviction for child molesting. Carpenter v. State (1988), Ind., 523 N.E.2d 407.

Appellant challenges the sufficiency of the evidence serving to identify him as the person who assaulted B.B. in Shanklin Park. The challenge first focuses on B.B.'s ability to have seen and remembered the details of his assailant's appearance and on discrepancies between his pre-trial description of the man who molested him, composite drawings made from this description, and appellant's appearance. The circumstances under which B.B. viewed his attacker and the discrepancies between his description, the composite, and appellant's appearance were fully disclosed to the jury, and it was for them to determine the weight given to the identification evidence and to decide whether it was satisfactory or trustworthy. Whitt v. State (1986), Ind., 499 N.E.2d 748.

Appellant also focuses on the testimony from himself and Rhoades that he was wearing his work uniform on July 15 and points out the conflict in evidence between their descriptions of his uniform and B.B.'s description of the clothing his attacker was wearing. He also points to his own testimony and that of his wife denying that he possessed a shirt of the type described by B.B. The resolution of such conflicts in evidence is within the province of the jury and will not be disturbed on appeal in the absence of inherently improbable testimony which runs contrary to human experience. Olinger v. State (1984), Ind., 463 N.E.2d 1385. We do not find the testimony of B.B. to be of that nature and therefore will not override its acceptance by the jury. Appellant also disputes the accuracy of Bickel's diagram, contending that the time allotted for and between each event is underestimated. Appellant's counsel conducted vigorous cross-examination of all State witnesses regarding their memory of when the charted events took place, their duration, and intervening lapses of time, and a clock diagram which was constructed during the cross-examinations and which contradicted Bickel's timetable was entered into evidence. Again, it was for the jury to determine the credibility and weight to be given to each of these exhibits. Id.

Appellant argues that Patricia Rhoades's testimony as to her memory of appellant's departure time, which provided the preliminary assumption upon which Captain Bickel constructed his diagram showing the relevant distances and travel time from Rhoades's home to Shanklin park to appellant's next worksite in Union, Michigan, was not worthy of credit. He contests her assertion that she remembered being on time for work that day and points out that her place of employment kept no written record which would verify the time of her arrival. He argues that her...

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