Caccavallo v. State

Decision Date21 June 1982
Docket NumberNo. 682S234,682S234
Citation436 N.E.2d 775
PartiesPeter P. CACCAVALLO, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

James W. Skinner, Portage, for appellant.

Linley E. Pearson, Atty. Gen., Richard Albert Alford, Deputy Atty. Gen., Indianapolis, for appellee.

TRANSFER FROM COURT OF APPEALS

GIVAN, Chief Judge.

Appellant was charged with Child Molesting. He was found guilty by a jury and was sentenced to an eight year term of imprisonment. The conviction was reversed by the Court of Appeals in an unpublished memorandum decision. 433 N.E.2d 421. We reverse the Court of Appeals and affirm the trial court.

Appellant is alleged to have had sexual intercourse with a child who was twelve years old at the time. The incident occurred on the night of October 31, 1979. The child lived with appellant and his own children, along with her father, from September, 1979, to January 1980. In January, 1980, the child's father moved back with her mother, from whom he had been separated, while the child continued to live with appellant until May, 1980. The child testified acts of intercourse occurred between her and appellant from October, 1979, to May 1980. She also testified she performed oral sex on appellant both prior to, and subsequent to, the charged act of intercourse.

One of the items of evidence admitted at trial over appellant's objection was a set of seventeen photographs. These photographs depict the child in various nude poses. Two of the photographs were taken by appellant while the child performed fellatio on him. The child testified the photographs were taken between January and May 1980. Appellant's objection is that the photographs constitute evidence of other crimes and should not have been admitted because their prejudicial effect outweighs their probative value.

The Court of Appeals agreed with appellant and reversed the conviction, holding the fifteen photographs were not admissible as evidence of prior criminal acts used to prove intent, purpose, motive, identity, or common scheme or plan. They held there was no error in admitting the two photographs depicting oral sex between the child and appellant. The Court of Appeals stated the fifteen photographs did not prove any of the elements of the charged offense, did nothing to bolster the credibility of the witness, and had a highly prejudicial effect. Also, the Court of Appeals held the fifteen photographs were not admissible under the depraved sexual instinct rule because they showed no evidence of sexual contact or a course of conduct on the part of appellant to satisfy his sexual desires.

We have often held evidence of other criminal activity is inadmissible except where it may be used to prove intent, purpose, motive, identity, or common scheme or plan. Montgomery v. State, (1980) Ind., 412 N.E.2d 793; Porter v. State, (1979) Ind., 397 N.E.2d 269; Choctaw v. State, (1979) Ind., 387 N.E.2d 1305; Willis v. State, (1977) 267 Ind. 439, 370 N.E.2d 906. However, where evidence of other criminal activity can serve none of these purposes but shows a "depraved sexual instinct," we have held such evidence admissible. Grey v. State, (1980) Ind., 404 N.E.2d 1348; Cobbs v. State, (1975) 264 Ind. 60, 338 N.E.2d 632; Miller v. State, (1971) 256 Ind. 296, 268 N.E.2d 299.

In the case at bar we have a situation where the evidence challenged is evidence of sexual activity taking place between the victim of the alleged offense and the accused. The evidence here is admissible because it is relevant to prove the offense charged; that is, it tends to show the act of intercourse alleged to have occurred on October 31, 1979, did in fact occur. Evidence is relevant if it tends to make an inference more probable. Smith v. State, (1981) Ind., 419 N.E.2d 743; Hill v. State, (1978) 267 Ind. 480, 371 N.E.2d 1303. This Court has held that evidence relevant to facts in an issue may be introduced even though it tends to show guilt of another crime, especially if the two crimes are related. Williams v. State, (1979) Ind., 386 N.E.2d 670; Grooms v. State, (1978) 269 Ind. 212, 379 N.E.2d 458; Woodard v. State, (1977) 267 Ind. 19, 366 N.E.2d 1160. In the case at bar the victim testified the sexual relationship was a continuing one which existed at the time the photographs were taken; the photographs thus suggest the existence of an intimate sexual relationship between the accused and the victim around the time of the charged offense. The evidence tends to prove the accused had a sexual relationship with the child, which makes more probable the inference that an act of sexual intercourse took place between them on October 31, 1979.

Rulings of the trial court as to relevancy of evidence are accorded wide latitude on appeal. Begley v. State, (1981) Ind., 416 N.E.2d 824; Misenheimer v. State, (1978) 268 Ind. 274, 374 N.E.2d 523. Such a ruling is disturbed only upon a showing of abuse of discretion by the trial court. Id. We see no abuse of discretion here. We hold the admission of the photographs was not error.

In a related claim appellant claims the trial court erred in admitting the photographs because their admission was prohibited under the Rape Shield Law, I.C. 35-1-32.5-1 through 4 (Burns 1979 Repl.). The record in this case, however, indicates that at no time was there an objection based on the Rape Shield statute. Grounds for an objection to the admission of evidence asserted on appeal must be the same as those asserted at trial. Phelan v. State, (1980) Ind., 406 N.E.2d 237; Proctor v. State, (1979) Ind., 397 N.E.2d 980; Minton v. State, (1978) 269 Ind. 39, 378 N.E.2d 639. The objection made on appeal is waived if the grounds differ from those asserted at trial.

Appellant claims the trial court erred in denying his motion for a continuance made the day of the trial, in order that he might take the child's deposition. Appellant cites Brewer v. State, (1977) 173 Ind.App. 161, 362 N.E.2d 1175, in support of the assertion the denial of the continuance here was an abuse of discretion. The record reflects counsel for appellant had been in contact with the prosecutor's office for weeks prior to trial about the taking of a deposition of the child. At that time she was in the custody of various juvenile authorities. The prosecutor, in a hearing on the motion held the morning of the trial, said he would have been willing to produce the witness for a deposition but was unable to make any arrangements for doing so with defense counsel. By the time the contact between the attorneys was made the child was in Indianapolis at the Girls' School and was not returned to Porter County until late on Friday afternoon, with the trial commencing on the following Monday morning.

The granting of a continuance lies within the sound discretion of the trial court and will be reversed only where there is an abuse of that discretion. Dorton v. State, (1981) Ind., 419 N.E.2d 1289; Whitacre v. State, (1980) Ind., 412 N.E.2d 1202; Aron v. State, (1979) Ind., 393 N.E.2d 157. We see no abuse of discretion in this case. The subject of the deposition was first raised at a hearing on a Motion to Suppress held October 29, 1980. Appellant was informed the prosecutor would cooperate with his attorney in getting the child's deposition. Despite this assurance, apparently appellant failed to move to depose the child until Wednesday, December 3, 1980, five days before the trial began. We have held the denial of a continuance is not an abuse of discretion when the appellant has failed to exercise due diligence to obtain the information sought prior to trial. See, Hemphill v. State, (1979) Ind., 387 N.E.2d 1324; Miller v. State, (1971) 256 Ind. 296, 268 N.E.2d 299.

Appellant claims the trial court erred in denying him a new trial because of the ineffectiveness of trial counsel. Appellant alleges this ineffectiveness is demonstrated by failure of trial counsel to depose State's witnesses; failure to make an opening statement; failure to depose witnesses whose testimony at a hearing on a Motion to Suppress would have enabled appellant to establish certain evidence was obtained through an unlawful search; and failure to object to testimony from the victim regarding other sexual acts between her and the accused.

This Court has frequently held incompetency of representation revolves around the particular facts of each case. Leaver v. State, (1981) Ind., 414 N.E.2d 959; Price v. State, (1980) Ind., 412 N.E.2d 783; Line v. State, (1979) Ind., 397 N.E.2d 975. Isolated mistakes, bad tactics, poor strategy, or inexperience do not amount to ineffective counsel unless, taken as a whole, the proceedings were reduced to a mockery of justice. Leaver, supra; Baker v. State, (1980) Ind., 403 N.E.2d 1069; Royal v. State, (1979) Ind., 396 N.E.2d 390.

In the case at bar the proceedings were not reduced to a mockery of justice. First we see counsel's choice of waiving an opening statement as a strategic choice we will not second-guess on appeal. Crisp v. State, (1979) Ind., 394 N.E.2d 115.

As to his failure to depose the State's witnesses, we fail to see what harm accrued to appellant as a result. He does not make it clear on appeal how he might have used information acquired from deposition of the State's witnesses to impeach their credibility or otherwise cast aspersions on their testimony. An appellant alleging incompetency of representation bears the burden of showing how he was harmed by the alleged inadequacy of that representation. Price, supra; Hollon v. State, (1980) Ind., 398...

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