Buzzard v. State
| Decision Date | 17 June 1999 |
| Docket Number | No. 44A03-9805-CR-222.,44A03-9805-CR-222. |
| Citation | 712 N.E.2d 547 |
| Parties | Ted Allen BUZZARD, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Thomas E. Hastings, Brown & Hastings, Indianapolis, Indiana, Attorney for Appellant.
Jeffrey A. Modisett, Attorney General of Indiana, James A. Garrard, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.
Defendant-Appellant Ted Allen Buzzard ("Buzzard") appeals his conviction of two counts of child molesting, Class B felonies, Ind.Code § 35-42-4-3; and two counts of child molesting, Class C felonies, Ind.Code § 35-42-4-3(b).
We affirm.
From approximately June 1, 1990, to approximately December 16, 1991, three sisters, eight-year old Ma.G., eleven-year old Me.G., and ten-year old T.G., spent several nights at the trailer home of their aunt and uncle. The girls usually slept in the same bed in the back bedroom of the trailer. On at least three occasions, Buzzard, their uncle, entered the bedroom where the girls were sleeping and engaged in various sexual acts with them.
Buzzard's nephew, six-year old R.Y., also spent a night at Buzzard's trailer. R.Y. and his younger brother, P.J., slept in the back room of Buzzard's trailer. R.Y. was awakened when Buzzard entered the bedroom. Buzzard engaged in a sexual act with him.
On January 3, 1992, the State filed five counts of child molesting against Buzzard. A jury trial was held on December 29th and December 30th of 1992, which resulted in convictions on all counts. On February 18, 1993, Buzzard was sentenced to an executed term of fifty-two years. We reversed those convictions on September 13, 1996, and remanded the matter for a new trial. Buzzard v. State, 669 N.E.2d 996 (Ind.Ct.App.1996). The fifth count against Buzzard was severed, and the second trial on the first four counts against Buzzard began on December 15, 1997, and continued through December 17, 1997. The jury convicted Buzzard on all four counts. Buzzard was sentenced on January 14, 1998, to 15 years on Count I, 15 years on Count II, four years on Count III, and four years on Count IV, to be served consecutively. This appeal followed after a motion to correct errors was denied.
Buzzard claims that the charging information filed against him was insufficient in that it failed to describe with particularity the time the alleged molestations occurred. He claims that he could not present an effective alibi defense at trial, and could not raise a double jeopardy defense in the event future allegations are brought against him.
The State contends that Buzzard has waived this argument because he failed to challenge the factual allegation in the charging informations prior to his arraignment and trial. The State cites to Jackson v. State, 643 N.E.2d 905, 908 (Ind.Ct.App.1994), trans. denied, in support of this argument. In Jackson, we stated that any challenge to the adequacy of an information must be made by a motion to dismiss prior to the arraignment. Id. Failure to do so is regarded as waiver. Id.
Buzzard attempts to avoid waiver of this argument by claiming that the error contained in the charging information amounts to fundamental error. In order to be fundamental, error must be so prejudicial to the rights of a defendant that he could not have received a fair trial. Marshall v. State, 602 N.E.2d 144,147 (Ind.Ct.App.1992), trans. denied. Waiver may be avoided only if the mistake constitutes a clearly blatant violation of basic and elementary principles and the resulting harm or potential for harm must be substantial. Id.
Ind.Code § 35-34-1-2(a)(5) and (6) state as follows:
We have held that the time of the offense is not of the essence in cases involving allegations of child molesting. Phillips v. State, 499 N.E.2d 803, 805 (Ind.Ct.App.1986). Further, the exact date of the offense becomes important only in circumstances where the victim's age at the time of the offense falls at or near the dividing line between classes of felonies. Downs v. State, 656 N.E.2d 849, 852 (Ind.Ct.App.1995).
Specifically, Buzzard contends that the time period alleged in the complaint is so broad that he could not present an effective alibi defense at trial. Moreover, he claims that he could not defend against future prosecution by use of a double jeopardy defense.
However, we have held that it is the record, not just the indictment or the information, which provides protection from subsequent prosecutions for the same offense. Phillips, 499 N.E.2d at 805. Imposition of two sentences for the same injury to the same victim inflicted by the same act of the defendant violates the federal and state prohibitions against double jeopardy. Id.
In the present case, the information alleged that the charged events took place from approximately June 1, 1990 to December 16, 1991. At trial, the State conceded that Buzzard was in Florida from March to September of 1990. Moreover, Buzzard claimed that his bedridden father stayed in the trailer from January to June of 1991. The victims testified that Buzzard's father was not in the trailer when they stayed with Buzzard. Therefore, the crimes charged had to have occurred between September of 1990 to January of 1991, and June of 1991 to December 16,1991. We find no fundamental error. See Thurston v. State, 472 N.E.2d 198, 201 (Ind.1985) (); Merry v. State, 166 Ind.App. 199, 335 N.E.2d 249 (1975) (); Phillips, 499 N.E.2d at 805-05 ().
On appeal, Buzzard claims that the trial court erred by allowing the State to elicit refreshed testimony from T.G. without laying the proper foundation for the testimony. Buzzard claims that this error entitles him to a new trial.
However, the State correctly points out that Buzzard's objection at trial was to the leading nature of the State's questions posed to T.G. The following is the objection made at trial:
(R. 623-24). The trial court overruled the objection and then adjourned for the day.
The next day Buzzard requested that the trial court strike a portion of T.G.'s testimony based upon "my objection to essentially refresh her memory with her statement." (R. 626). The trial court overruled the motion to strike a portion of T.G.'s testimony.
Buzzard cannot raise an argument on appeal which is different from the argument raised at trial. Jones v. State, 536 N.E.2d 267, 274 (Ind.1989), reh'g. denied. Because the argument made here on appeal, lack of foundation, was not raised at the trial level, the issue is waived on appeal. Ind. Appellate Rule 8.3(A)(7).
Buzzard claims that the trial court committed reversible error by limiting his ability to cross-examine T.G. Buzzard contends that he was denied his right of confrontation under the Sixth Amendment to the United States Constitution and the right to face-to-face confrontation with witnesses against him under Article 1, § 13 of the Indiana Constitution.
The right of confrontation assured by the Sixth Amendment requires that a defendant be afforded an opportunity to conduct a full, adequate, and effective crossexamination. Ingram v. State, 547 N.E.2d 823, 827 (Ind.1989). The Indiana Constitution guarantees a defendant the right to face-to-face confrontation with witnesses against him. Arndt v. State, 642 N.E.2d 224, 228 (Ind.1994). This right is subject to reasonable limits a trial court, in its discretion, may impose upon cross-examination. Id. Reversal is warranted only for a clear abuse of this discretion. Id. A defendant will succeed in showing an abuse of discretion by the trial court in the limitations imposed upon cross-examination if he can show prejudice by the trial court's actions. Braswell v. State, 550 N.E.2d 1280, 1282 (Ind.1990).
In the present case T.G. testified on direct examination, was cross-examined by Buzzard, testified on re-direct examination, was re-cross-examined by Buzzard, and testified again on re-re-direct examination. Buzzard was charged with and convicted of child molesting, a Class C felony for fondling or touching T.G. with the intent to arouse or satisfy his sexual...
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