Carter v. State

• Decision Date: 05 September 2001
• Docket Number: No. 49S00-0001-CR-00041.,49S00-0001-CR-00041.
• Parties: Orville CARTER, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

754 N.E.2d 877

Orville CARTER, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 49S00-0001-CR-00041.

Supreme Court of Indiana.

September 5, 2001.

Robert W. Hammerle, Joseph M. Cleary, Indianapolis, IN, Attorneys for Appellant.

Karen M. Freeman-Wilson, Attorney General of Indiana, Monika Prekopa Talbot, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

SHEPARD, Chief Justice.

Appellant Orville Carter received a sixty-year prison sentence for molesting his autistic eight-year-old daughter. He claims that the child's word was not sufficient evidence. He also asserts that the trial court committed fundamental errors that rendered his trial unfair. We affirm.

Facts and Procedural History

M.C. is a highly intelligent child who sometimes makes inappropriate comments because she is autistic. On May 25, 1999, M.C.'s mother Jessica Carter talked with her about subjects that are "personal" and not for public discussion.¹ M.C. asked if weather was personal, and Jessica said no. M.C. then asked "if someone showing you their w[ie]nie was a personal thing." (R. at 140.)

M.C. went on to tell Jessica that Carter, M.C.'s father, came into her room one night and had M.C. touch his penis, then put it in her mouth. Jessica asked M.C. what that felt like, and M.C. replied that it felt like rubber.

Jessica told M.C. that other people would want to talk to her, and that M.C. should tell them the same story. She immediately sought advice at M.C.'s school, where she happened to encounter Dr. Robin Murphy, a psychologist specializing in autism who had worked with M.C. on three or four previous occasions. At the urging of school authorities, Jessica then took M.C. to the Family Advocacy Center for a videotaped interview with police officer Kathy Graban, where M.C. related the same story.

Officer Graban found it curious that M.C. "blurted out" her story unprompted. (R. at 183.) On Dr. Murphy's advice, she visited M.C. unannounced on June 4th to make sure that this spontaneity was the result of autism rather than coaching. M.C.'s story remained consistent.

The State charged Carter with child molesting, a class A felony, and with being an habitual offender.

M.C. was the first witness at trial. The prosecutor encountered difficulty immediately, when M.C. was unable to identify Carter in the courtroom.² She did elicit a disjointed version of M.C.'s story.³ M.C.'s responses then became so rambling and incoherent that the prosecutor concluded her direct examination.

On cross-examination, M.C. admitted that she did not remember Carter's attorney, whom she had met previously, and said, "I do get confused. I mostly forgot about you. . . ." (R. at 133.) When asked "Do you get confused a lot with things that have happened?", M.C. acknowledged, "Yes." (Id.) She did reassert, however, that her father "went to jail because he—because he done something—touched my w[ie]nie . . . He made me touch his w[ie]nie, I should say." (R. at 134.)

Jessica Carter testified next. On direct examination, she described what M.C. said about the molestation. On cross, defense counsel elicited the fact that three weeks after this disclosure, Jessica overheard M.C. talking to herself about a schoolmate who said that "if you put a w[ie]nie in your mouth it grows." (R. at 147.) Jessica questioned M.C. further, and asked her again about the incident involving Carter. According to Jessica, M.C. said that "daddy woke her up and then daddy pulled his big-boy shorts down. . . ." (R. at 148.) Jessica pointed out to M.C. that "big-boy shorts" was their household term for briefs, which M.C.'s younger brother wore but her father did not. M.C. "looked a little confused and [ ] said, well, maybe it wasn't daddy." (R. at 149.)

Jessica also testified on cross-examination that M.C. is "[v]ery imaginative." (R. at 150.) She said that M.C. sometimes imagines things such as earthquakes and tornadoes that become very real in her mind.

The State next called Dr. Murphy as an expert witness. Officer Graban took the stand last and the State introduced M.C.'s videotaped May 25th interview. Officer Graban testified that M.C.'s story remained consistent on her June 4th unannounced visit.

Carter did not call any witnesses. The jury found him guilty of child molesting, and he pled guilty to being an habitual offender. The court entered a judgment of conviction and imposed a sixty-year sentence.

I. The Evidence Was Sufficient

We neither reweigh evidence nor judge witness credibility when evaluating sufficiency claims. Dinger v. State, 540 N.E.2d 39 (Ind.1989). We look to the evidence and to the reasonable inferences from that evidence that support the verdict. Id. We affirm if we find evidence of probative value from which a reasonable trier of fact could infer guilt beyond a reasonable doubt. Id. at 39-40. A molested child's uncorroborated testimony is sufficient to sustain a conviction. Id. at 40.

Carter argues that the sole evidence against him, i.e. M.C.'s story,⁴ was unreliable because M.C. could not identify her father in the courtroom and because, although she referred to her "dad" in most of her testimony, at one point she said, "And—[my brother]—he just told me to touch it. . . ." (Appellant's Br. at 6; R. at 131.) He also cites Jessica's testimony that M.C. sometimes imagined things such as storms that became real in her mind, and that M.C. expressed uncertainty about her attacker's identity after she remembered that he wore briefs.

The problem Carter faces is that, with few exceptions, juries decide whether witnesses are to be believed. Rodgers v. State, 422 N.E.2d 1211, 1213 (Ind.1981). Carter invokes the "incredible dubiosity" rule, under which we may encroach upon this prerogative if a witness's testimony is inherently improbable or coerced, equivocal, or wholly uncorroborated. Lott v. State, 690 N.E.2d 204, 208 (Ind.1997)(citing Gaddis v. State, 253 Ind. 73, 251 N.E.2d 658 (1969)).

M.C.'s story is not inherently improbable. It is uncorroborated, but by its very nature child molestation often occurs without witnesses or physical evidence. As noted above, the fact that the only evidence is the child victim's statement does not require reversal. Dinger, 540 N.E.2d at 39-40.

Carter says that M.C. equivocated by making contradictory statements. The State counters by pointing out that M.C. told the same story four different times,⁵ before and after the one time she expressed some uncertainty about her molester's identity. Furthermore, although M.C. failed to recognize Carter in the courtroom, she named her father as her attacker in all four statements, and Carter was undisputedly the only father figure in her life.⁶

Carter presents a close case, but the evidence was not so equivocal as to be incredibly dubious. "A conviction for rape can rest on the uncorroborated testimony of the victim even though there is equivocation or inconsistency in that testimony." Peters v. State, 542 N.E.2d 1340, 1342 (Ind.1989) (citation omitted). The same is true of molestation, and here a reasonable jury could have accepted M.C.'s four consistent accusations as true beyond a reasonable doubt.⁷

II. No Fundamental Error

Carter claims that a number of errors, each discussed below, rendered his trial unfair. (Appellant's Br. at 1.) Carter has waived each of these claims unless they rise to the level of fundamental error.⁸ Helton v. State, 539 N.E.2d 956, 957 (Ind.1989).

We recently re-emphasized the extremely narrow applicability of the fundamental error doctrine in Taylor v. State, 717 N.E.2d 90, 93-94 (Ind.1999). A fundamental error is "a substantial, blatant violation of basic principles of due process rendering the trial unfair to the defendant." Id. at 93. It applies only when the actual or potential harm "cannot be denied." Id. (citing Ford v. State, 704 N.E.2d 457, 461 (Ind.1998)). The error must be "so prejudicial to the rights of a defendant as to make a fair trial impossible." Taylor, 717 N.E.2d at 93 (quoting Barany v. State, 658 N.E.2d 60, 64 (Ind. 1995)). An appellate court receiving contentions of fundamental error need only expound upon those it thinks warrant relief. It is otherwise adequate to note that the claim has not been preserved.

Of Carter's six grievances, one presents a plausible claim for fundamental error and we examine it at length. The remaining claims are modest ones that do not warrant exception to the general rule requiring preservation of error.

A. Expert Vouching. Carter asserts that the court erred by permitting Dr. Murphy to testify that autistic children cannot lie. (Appellant's Br. at 9.) He claims that Dr. Murphy's testimony violated Ind. Evidence Rule 704(b): "Witnesses may not testify to opinions concerning intent, guilt, or innocence in a criminal case; the truth or falsity of allegations; whether a witness has testified truthfully; or legal conclusions."

In this case, the special problems that arise when a child accuses a family member of molestation were compounded by M.C.'s autism. We expect jurors to draw upon their own personal knowledge and experience in assessing credibility and deciding guilt or innocence. See Lamar v. State, 514 N.E.2d 1269 (Ind.1987)

. When they are faced with evidence that falls outside common experience, we allow specialists to supplement the jurors' insight. Indiana Evidence Rule 702(a) says: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise."

Dr. Murphy described her prior contacts with M.C. as very sporadic and said that she had not seen M.C. since the prior year. She testified that autistic children generally "have a very, very difficult time manipulating what's in someone's mind," i.e., deliberately deceiving...