Clausen v. State, 76A03-9211-CR-376
Citation | 612 N.E.2d 147 |
Decision Date | 12 April 1993 |
Docket Number | No. 76A03-9211-CR-376,76A03-9211-CR-376 |
Parties | Michael D. CLAUSEN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
Court | Court of Appeals of Indiana |
Latriealle Wheat, Wheat and Stout, Angola, for appellant-defendant.
Pamela Carter, Atty. Gen., Sue A. Bradley, Deputy Atty. Gen., Indianapolis, for appellee-plaintiff.
Appellant-defendant Michael D. Clausen appeals his convictions for two counts of child molesting, Class B felonies.
The facts relevant to the appeal disclose that on April 19, 1987, S.E., the then 11-year-old victim, was living with her mother, siblings, and appellant, her step-father, at her grandmother's house in Steuben County, Indiana. When S.E. was getting ready for bed on the night of April 19, appellant came into her room, removed his clothing, and began kissing her. Appellant then removed S.E.'s clothing and forced her to perform and submit to oral sex. At trial, S.E. testified that appellant also forced her to engage in sexual intercourse on the night of April 19; however, the jury returned a verdict of not guilty on the child molesting count involving sexual intercourse with a child under the age of 12.
R.R., appellant's 36-year-old adopted daughter, also testified at the trial. According to R.R.'s testimony, appellant fondled her in bed on numerous occasions from the age of 5 or 6 to the age of 10 or 12. Appellant admitted at trial to placing his penis between R.R.'s legs on one occasion, but he denied ever touching S.E. in a sexual way. Along with her testimony regarding the charged offenses (the acts which took place on April 19), S.E. testified as to acts of sexual misconduct involving appellant which occurred from the age of 8 to the age of 12. The jury found appellant guilty of two counts of child molesting, one involving submission to deviate sexual conduct with a child under the age of 12, and the other involving performance of deviate sexual conduct on a child under the age of 12.
Appellant raises two issues for review on appeal:
(1) whether the trial court erred in admitting evidence of appellant's prior acts of sexual misconduct with R.R.; and
(2) whether the trial court erred in ordering appellant to pay the cost of S.E.'s counseling sessions.
First, appellant claims the trial court erred in admitting evidence of his prior acts of sexual misconduct with R.R. Although appellant did not object to R.R.'s testimony at trial, the page of the record immediately preceding her testimony states as follows:
Record at 224. (Emphasis supplied.). Failure to present a timely objection at trial to allegedly improper testimony constitutes waiver of any error. Ried v. State (1993), Ind.App. 610 N.E.2d 275, 281. Moreover, the requirement for timely objection at trial applies notwithstanding a trial court's denial of a pre-trial motion in limine. Id. Because appellant failed to present a timely objection at trial, he has waived any error for appellate review. 1
Furthermore, even if appellant had not waived the alleged error by failing to make a timely objection, his claim lacks merit. Appellant made no objection whatsoever to S.E.'s testimony regarding his prior acts of sexual misconduct with her. R.R.'s testimony, therefore, was simply cumulative of S.E.'s testimony. Considering that appellant also admitted to a prior act of sexual misconduct with R.R., his claim has even less merit. There is no reversible error here.
Next, appellant contends the trial court erred in ordering him to pay the cost of S.E.'s counseling sessions. As both parties note, a trial court has the authority to order a defendant to make restitution to the victim of the crime as a part of his sentence, IND.CODE Sec. 35-50-5-3(a) (1992 Supp.), or as a condition of probation, IND.CODE Sec. 35-38-2-2.3(a)(5) (1992 Supp.). Here, the trial court's sentencing order incorporates the court's written statement of probation conditions which sets out the restitution condition, in pertinent part, as follows:
Record at 132-133. 2 According to IND.CODE Sec. 35-38-2-2.3(a)(5), "[w]hen...
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Clausen v. State
...concurrently, with two years on each count suspended with probation. The Court of Appeals affirmed the convictions. Clausen v. State (1993), Ind.App., 612 N.E.2d 147. In his petition to transfer, Clausen raises the following issues which we restate (1) Whether the trial court erred in admit......
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Iltzsch v. State
...this Court and the Court of Appeals. See, e.g., Clausen v. State, 622 N.E.2d 925, 928 (Ind.1993), adopting in part Clausen v. State, 612 N.E.2d 147, 149 (Ind.Ct.App.1993)(remanding with instructions to hold a hearing to determine the cost of counseling, where there had been no evidence of t......
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McGuire v. State, 49A02-9306-CR-271
...Sec. 35-50-5-3(a) (1992 Supp.), or as a condition of probation, IND.CODE Sec. 35-38-2-2.3(a)(5) (1992 Supp.). Clausen v. State (1993), Ind.App., 612 N.E.2d 147, 148, trans. granted adopting issue as to restitution (filed October 26, 1993, Ind. No. 76S03-9310-CR-1172). According to IND.CODE ......