Clark v. State

• Citation: 728 N.E.2d 880
• Decision Date: 18 May 2000
• Docket Number: No. 49A05-9907-CR-307,49A05-9907-CR-307
• Parties: (Ind.App. 2000) JAMES CLARK, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff
• Court: Court of Appeals of Indiana

Page 880

728 N.E.2d 880 (Ind.App. 2000)

JAMES CLARK, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff.

No. 49A05-9907-CR-307

IN THE COURT OF APPEALS OF INDIANA

May 18, 2000

APPEAL FROM THE MARION SUPERIOR COURT: The Honorable W. T. Robinette, Commissioner, Cause No. 49G03-9901-CF-10399 ATTORNEYS FOR APPELLANT: JANE RUEMMELE, Laudig George Rutherford & Sipes, Indianapolis, Indiana, PETER NUGENT, Nugent Arnett & Oakes, Indianapolis, Indiana

ATTORNEYS FOR APPELLEE: JEFFREY A. MODISETT, Attorney General of Indiana, ROSEMARY L. BOREK, Deputy Attorney General, Indianapolis, Indiana

OPINION

BAKER, Judge

Appellant-defendant James Clark appeals his conviction for Child Molesting,¹ a Class A felony. Specifically, he argues that the trial court erred in (1) denying defense counsel's instruction on the element of intent in the child molesting statute; (2) allowing a testifying police officer to reveal the contents of a report which alleged that an act of child molesting had occurred; (3) allowing into evidence a statement he made to an investigating detective; and (4) using the Rape Shield Statute to prohibit the defense from developing facts in support of its theory. Finally, Clark argues that his conviction is not supported by sufficient evidence.

FACTS

The facts most favorable to the verdict reveal that during the late summer or fall of 1997, Clark, then age thirty-nine, went to the bedroom of his then eleven-year-old daughter, M.M., and, while she was lying in bed, put his finger into her vagina. Clark then told M.M. not to tell her mother (Kathleen) because either her mother would kill Clark or the knowledge of what had happened would kill her mother.

On January 22, 1998, the State filed a charging information alleging that Clark committed Child Molesting between July 4, 1997 and October 1, 1997. During Clark's trial, which commenced on April 26, 1999, Indianapolis Police Detective Tom McGraw testified regarding the course of his investigation of Clark. The trial court allowed Detective McGraw to testify over Clark's objection, that he had received a "310 report" in which Kathleen had alleged Clark had molested M.M. Record at 209.

The trial court also admitted a taped telephone conversation between Clark and Detective McGraw over Clark's objection. During the conversation, Detective McGraw informed Clark that he did not have to speak to him. However, Clark wanted to talk to Detective McGraw and made an appointment for the following morning. Detective McGraw also expressed concern that Clark might be suicidal and urged him not to harm himself. Without prompting or questioning by Detective McGraw, Clark revealed that he had "screwed up" and that he had put his finger into M.M.'s vagina. R. at 104, 106-08.

On direct examination, M.M. testified that Clark had put his finger into her vagina to determine if she had been sexually active. On cross-examination, Clark attempted to ask M.M. whether she had written letters which caused Clark to be concerned about whether she had been sexually active. The trial court sustained the State's objection to evidence about the letters under the Rape Shield Rule, Ind. Evidence Rule 412; IND. CODE 35-37-4-4.²

Furthermore, the trial court gave a preliminary instruction on child molesting as follows:

A person who, with a child under fourteen (14) years of age, performs or submits to deviate sexual conduct commits child molesting. The offense is a Class A felony if it is committed by a person at least twenty one (21) years of age.

The elements of this offense are that the defendant must:

1. with a child under fourteen (14) years of age

2. perform or submit to deviate sexual conduct

3. when the defendant was at least twenty one (21) years of age.

The term "deviate sexual conduct" as used herein means an act knowing or intentionally [sic] involving the penetration of the sex organ or anus of a person by an object.

R. at 51. In addition, the trial court refused to give Clark's proffered instructions, which follow:

Instruction 4

The crime of child molesting is defined by statute as follows:

A person who, with a child under fourteen (14) years of age, performs or submits to sexual intercourse or deviate sexual conduct, with the intent to arouse or satisfy the sexual desires of the child, and the defendant was over the age of twenty-one (21) years of age, commits child molesting a Class A felony.

To convict the defendant, the State must have proved each of the following elements beyond a reasonable doubt:

The Defendant

1. Knowingly or intentionally

2. Performed or submitted to deviate sexual conduct

3. With the intent to arouse or satisfy the sexual desires of the child or the defendant.

4. When the child was under fourteen years of age, and

5. The defendant was over twenty-one years of age.

If the State failed to prove any of these elements beyond a reasonable doubt, you should find the defendant Not Guilty.

If the State did prove each of these elements beyond a reasonable doubt, you should find the defendant Guilty of child molesting, a Class A felony.

Authorities

Indiana Pattern Jury Instruction No. 3.33.

Warren v. State, 701 N.E.2d 902, Ind. App. Ct. (1998).

Cardwell v. State, 516 N.E.2d 1083, Ind. App. Ct. (1987).

Warrick v. State, 538 N.E.2d 952, Ind. App. Ct. (1989).

Instruction 5

The crime of child molesting in the State of Indiana as a Class A Felony requires proof that the defendant acted with the intent to arouse or satisfy the sexual desires of the child or himself.

[Authorities omitted.]

R. at 45-46. Clark was convicted of child molesting. The trial court sentenced Clark to the minimum executed sentence of twenty years. Clark now appeals.

DISCUSSION AND DECISION

I. Jury Instruction

We address first Clark's argument that the trial court's refusal to give Clark's proffered instruction on child molesting was error because we find this dispositive. Clark asserts that the trial court erred in leaving out of its definition of child molesting the element that the act in question be performed with the intent to arouse or satisfy the sexual desires of the child or the defendant. He maintains that the trial court erred in refusing his proffered instruction which remedied the defect in the trial court instruction.

We note initially that when we evaluate whether a trial court erred in refusing or giving an instruction, we look at the following factors: 1) whether the tendered instruction correctly states the law; 2) whether there is evidence in the record to support giving the instruction; 3) whether the substance of the instruction is covered by other instructions. Field v. State, 679 N.E.2d 1315, 1322 (Ind. 1997). Instruction of the jury lies within the trial court's discretion and reversal occurs only when the trial court has abused its discretion. Edgecomb v. State, 673 N.E.2d 1185, 1186 (Ind. 1996). We consider the jury instruction as a whole and in reference to each other. Conner v. State, 711 N.E.2d 1238, 1247 (Ind. 1999). An error in an instruction will not result in reversal unless the entire charge misleads the jury. Edgecomb, 673 N.E.2d at 1186. We further note that this court has found that the crime of child molesting requires proof of mens rea. Warren v. State, 701 N.E. 2d 902, 905 (Ind. Ct. App. 1998) trans. denied; Cardwell v. State, 516 N.E.2d 1083, 1086-87 (Ind. Ct. App. 1987), trans. denied.³

Clark's proffered instructions include the element of criminal intent, that is, an intent to arouse sexual desire. R. at 45-46. The State has argued that the trial court's instruction is not an abuse of discretion because, taken together with the other instructions, it does not preclude the jury from considering Clark's claim that he did not have the requisite sexual intent. The State also argues that there is no mens rea requirement for cases of deviate sexual conduct because, unlike fondling, which has a mens rea element, an act which constitutes deviate sexual conduct is in itself proof of sexual intent.

Contrary to the State's claim, there is a mens rea requirement for acts of deviate sexual conduct. See Warren, 701 N.E. 2d at 90; Cardwell, 516 N.E.2d at 1086-87. Here, the trial court's instruction explains that an act "knowing or intentionally" [sic], must be committed. However, it contains no description whatsoever of the criminal intent involved, namely, of the mens rea which makes child molesting a criminal act and a doctor's examination not a criminal act. R. at 51.

We conclude that the trial court instructions are inadequate to describe the elements that the State is required to prove in order to convict a defendant of child molesting. Thus, the instructions are an incorrect statement of the law, whether seen as a whole or taken together. We find that the trial court erred in refusing the instruction which would have made criminal intent a separate element which the State was required to prove. For this reason, we reverse and remand to the trial court with instructions to grant a new trial. We next address the other issues raised by Clark so that they will not be the subject of contention at a future trial.

II. Reference to the Report of Child Molesting

Clark next argues that the trial court improperly admitted into evidence a reference to the "310 report" which Detective McGraw had been given and which contained an allegation by Kathleen that Clark had molested M.M. Appellant's brief at 15. Specifically, he argues that the contents of the report were hearsay.

We note initially that the decision to admit or exclude evidence is within the sound discretion of the trial court, and we will not reverse the trial court's decision on appeal absent an abuse of that discretion. Maslin v. State, 718 N.E.2d 1230, 1234 (Ind. Ct. App. 1999). Furthermore, we observe that hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of...