Buck v. State
| Decision Date | 28 September 1983 |
| Docket Number | No. 582S190A,582S190A |
| Parties | Pamela BUCK a/k/a Pamela Torres, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). |
| Court | Indiana Supreme Court |
John F. Davis, Mary Jane Humphrey, Evansville, for appellant.
Linley E. Pearson, Atty. Gen., Palmer K. Ward, Deputy Atty. Gen., Indianapolis, for appellee.
The defendant, Pamela Buck, was convicted by a jury of child molesting, a Class B felony, and child molesting, a Class C felony. She was sentenced to the Indiana Department of Correction for a period of twenty years. Her direct appeal raises the following nine issues:
1. Whether the evidence is sufficient to support the convictions:
2. Whether the trial court erred in permitting the state to amend the Information for Count I at trial;
3. Whether the trial court erred in overruling defendant's motion to dismiss Count II of the Information;
4. Whether the trial court erred in denying defendant's motion to suppress her out-of-court statements to the police;
5. Whether the trial court should have granted defendant's motion in limine; and whether the trial court erred in permitting reference to certain photographs before they were admitted into evidence;
6. Whether the trial court erred in admitting state's Exhibit 16;
7. Whether the trial court erred in admitting testimony of a medical expert witness;
8. Whether the trial court erred in admitting testimony of state's witness Captain Ballard; and
9. Whether the trial court erred in permitting state's witness to refresh his memory from notes written by another person.
An examination of the record most favorable to the state discloses that Deputy Sheriff George Ballard received a manila envelope with no return address in the mail. The envelope contained fourteen Polaroid photographs and a file card. The typewritten message on the file card identified defendant, her boyfriend, and the little girl, who was the victim in this case, as the persons in the photographs. The child's mother was also identified by her maiden name.
Two photographs depict defendant and the then three year old victim in poses involving fondling and cunnilingus. Two other photographs depict the victim nude from the waist down. In one of these photographs defendant is leaning over the child's genital area. The remaining photographs show sexual activity between defendant's boyfriend and the victim. Deputy Ballard located the victim's mother at her home in Muskogee, Oklahoma. During the trial the victim's mother testified her family lived in the same apartment building as defendant and her boyfriend. In December, 1978, defendant asked if the victim could spend the night with them. After some discussion, the parents consented. The victim's mother was not aware of any sexual activity that occurred until Deputy Ballard contacted her.
Defendant first contends the evidence is insufficient to support the convictions. In part, she postures her contention as a challenge to the trial court's failure to grant her motion for judgment on the evidence at the close of the state's case in chief. However, any error here has been waived because defendant chose to present evidence in her own behalf. Bivins v. State, (1982) Ind., 433 N.E.2d 387; Chambers v. State, (1981) Ind., 422 N.E.2d 1198.
Defendant also argues the photographs depicting sexual activity between her and the victim are insufficient to support the convictions without any supporting testimony or other evidence. This is the same argument we addressed in Torres v. State, (1982) Ind., 442 N.E.2d 1021, a case arising from the same incident involved here. There defendant's boyfriend was charged with child molesting based on sexual intercourse. We found the photographs sufficient to support the jury's finding that sexual intercourse occurred. To reach this conclusion we adopted the silent witness theory. See, e.g., Bergner v. State, (1979) Ind.App., 397 N.E.2d 1012, transfer denied, July 1, 1980. This theory permits admission of photographic evidence at trial as substantive evidence rather than merely demonstrative. No witness is required to testify that the photograph accurately represents what he or she observed. The photograph "speaks for itself." Bergner, 397 N.E.2d at 1015; 111 J. WIGMORE, EVIDENCE Sec. 790 (Chadbourn rev. 1970). In Torres, 442 N.E.2d at 1024, we quoted from Bergner, 397 N.E.2d at 1012, the following standard for admissibility of photographs as substantive evidence:
As in Torres, the record here contains substantial evidence eliminating any danger of misrepresentation. The state introduced uncontroverted evidence that the Polaroid photographs were not altered or retouched. The victim's mother identified her daughter, defendant, and defendant's boyfriend as those persons in the photographs. Based on her knowledge of defendant's apartment, the victim's mother also identified the background of the photographs as defendant's residence. She also approximated the date the photographs were taken. We believe this evidence was sufficient to sustain the verdict.
Defendant next contends the trial court erred in permitting the state to amend the Information for Count I at trial. The state sought and was granted permission to amend what it called a typographical error. Defendant objected and moved for a continuance which was denied. The amendment changed the section of the Indiana Code from Sec. 35-42-4-2 to Sec. 35-42-4-3 (Burns 1979). The former section prohibits unlawful deviate conduct while the latter prohibits child molesting. The substance of the charge remained unchanged and contained allegations of acts which constitute child molesting.
The Indiana statute controlling amendment procedure reads in pertinent part:
Ind.Code Sec. 35-3.1-1-5 (Burns 1979).
Defendant now argues that the correction by amendment completely changed the nature of the crime, the substance of the crime, and her available defenses. We find this contention untenable. Upon examining the charge in the Information, we find that defendant knew or should have known she was being charged with child molesting. The charge contains all the elements found in Ind.Code Sec. 35-42-4-3, the child molesting statute. Unlawful deviate conduct under Ind.Code Sec. 35-42-4-2 requires a showing of either "compulsion," "unawareness," or "disability." None of these elements is even remotely alleged in the Information. Moreover, a further examination of the charge shows that on the reverse side of the Information the section of the code is shown as Ind.Code Sec. 35-42-4-3 and the complaint is for child molesting.
Thus, we find that defendant was adequately apprised of the charge of child molesting and was not substantially prejudiced by the amendment needed to correct a typographical error. There was no reversible error here.
Defendant was charged with and convicted of two counts of child molesting. In Count I the charge was for performing deviate sexual conduct under Ind.Code Sec. 35-42-4-3(a) and in Count II for fondling and touching with intent to arouse sexual desires under Ind.Code Sec. 35-42-4-3(b). Defendant now argues that the trial court erred in overruling her motion to dismiss Count II of the Information. Her argument is based on the theory that Count II was a lesser included offense of Count I of the Information. We disagree.
Indiana's child molesting statute in pertinent part provides:
Ind.Code Sec. 35-42-4-3 (Burns 1979). "Deviate sexual conduct" in subsection (a) is specifically defined in Ind.Code Sec. 35-41-1-2 (Burns 1979) as "an act of sexual gratification involving a sex organ of one person and the mouth or anus of another person." It is evident the child molesting statute embraces three distinct types of child molesting by encompassing the acts of sexual intercourse, deviate sexual conduct, and fondling or touching with intent to arouse sexual desires. Clearly different acts and elements are required to be proven in each case and the defensive posture would not be the same since the prosecution would necessarily proceed under different theories and proof. Just as deviate sexual conduct and...
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