Craig v. State

• Decision Date: 24 May 1993
• Docket Number: No. 33A01-9208-CR-257,33A01-9208-CR-257
• Citation: 613 N.E.2d 501
• Parties: Howard R. CRAIG, Sr., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 501

613 N.E.2d 501

Howard R. CRAIG, Sr., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 33A01-9208-CR-257.

Court of Appeals of Indiana,

First District.

May 24, 1993.

Rehearing Denied July 15, 1993.

Susan K. Carpenter, Public Defender, Kenneth M. Stroud, Deputy Public Defender, Indianapolis, for appellant-defendant.

Pamela Carter, Atty. Gen., Lisa M. Paunicka, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee-plaintiff.

ROBERTSON, Judge.

Howard R. Craig appeals his convictions of one count of child molesting, a class B felony, and one count of incest, a class D felony, for which he received ten-year and one and one-half year sentences to be served concurrently.

We affirm but vacate Craig's conviction of incest.

I.

The State's third witness, Officer Heiden, testified on direct examination, over Craig's hearsay objection, that H.C.'s mother told him "that, uh, Howard Craig ... had put his penis into [H.C.'s] mouth." Earlier testimony had already established that H.C.'s mother had not been present when the alleged incident occurred. Accordingly, Craig argues that the statement constitutes double hearsay which is inadmissible under the Modesitt rule, Modesitt v. State (1991), Ind., 578 N.E.2d 649. The State responds that the out-of-court statement is not hearsay at all as it was introduced to establish the fact of an investigation by police, a well-recognized exception to the hearsay rule in Indiana. See e.g. Long v. State (1991), Ind., 582 N.E.2d 361; Altmeyer v. State (1988), Ind., 519 N.E.2d 138. The Modesitt decision did not affect the existing recognized hearsay rule or its exceptions. Modesitt, 578 N.E.2d at 654.

Hearsay is defined as an out-of-court statement offered in court to prove the truth of the matter asserted therein and rests on the credibility of a declarant who is not in court and is unavailable for cross-examination. Miller v. State (1991), Ind., 575 N.E.2d 272, 274; Williams v. State (1989), Ind., 544 N.E.2d 161, 162 citing Blue v. Brooks (1973), 261 Ind. 338, 343, 303 N.E.2d 269, 273. If challenged evidence is hearsay and does not fall within one of the exceptions to the hearsay rule, then it is inadmissible. Miller, 575 N.E.2d at 274.

The hearsay rule does not apply so as to require exclusion of police "[t]estimony which contains out-of-court statements by third parties but [which] is introduced primarily to explain why a particular course of action was taken" during a criminal investigation. Johnston v. State (1988), Ind., 530 N.E.2d 1179, 1181; Rhoton v. State (1985), Ind., 486 N.E.2d 495. In Williams v. State, 544 N.E.2d 161, the Indiana Supreme Court first announced the rule that when approving the admission of such testimony, an appellate court must require a reasonable level of assurance that such testimony was not offered by the proponent nor received by the trier of fact as evidence of the truth of the third party's statement. Id. at 162-3.

Since Williams, Indiana appellate decisions have generally applied the Williams standard of review and required such assurance. See e.g., McGowan v. State (1992), Ind., 599 N.E.2d 589; Holliday v. State (1992), Ind.App., 601 N.E.2d 385, trans. denied; Goldsworthy v. State (1991), Ind.App., 582 N.E.2d 921; Newbauer v. State (1991), Ind.App., 569 N.E.2d 759, trans. denied. However, also since Williams, in two decisions, the Indiana Supreme Court has not applied the reasonable assurance test, permitting the content of a declarant's out-of-court statement to be used as substantive evidence to explain the course of action taken in a criminal investigation.

In Long, 582 N.E.2d at 362-3, the declarant was murdered and her out-of-court statements over the telephone to her daughter which implicated "one of Henry Long's boys" were admitted through a police officer based in part on this exception and in part on the fact that the daughter testified at trial and was available for cross-examination. A second statement from the defendant's wife concerning the defendant's whereabouts at the time of crime also came into evidence through the police officer and its admission affirmed on the same basis. Four justices concurred. In Heck v. State (1990), Ind., 552 N.E.2d 446, 451, cert. denied, --- U.S. ----, 113 S.Ct. 1308, 122 L.Ed.2d 696, the court found admissible "to show the reason for the officer's subsequent action," the testimony of a detective "concerning a telephone conversation he had with Donna Brady as to whether the victim had made a trip to Florida at the time of her disappearance." The content of the conversation was admitted in this case as well. Appellee's brief, p. 49, 2 Briefs of Reported Cases 552 N.E.2d PP443-End. Three justices concurred.

While we agree with earlier decisions which have expressed the view that the better rule is to exclude the content of a hearsay statement when the fact of the making of a statement itself will suffice to show or explain a police investigation, see e.g. O'Grady v. State (1985), Ind.App., 481 N.E.2d 115, 119 n. 1, trans. denied, the most recent statement of the law is as set forth by the Indiana Supreme Court in Long and Heck. The trial court did not err in April, 1992 when it relied upon these cases and determined that the hearsay statement at issue could be introduced to show or explain the course of a police investigation.

II.

Craig next argues that the trial court committed fundamental error when it allowed the police officer to conclude that, based upon his initial interviews with H.C., proceedings which occurred in-court at an earlier time, and H.C.'s trial testimony, H.C. had been consistent in his allegation that his father had forced him to take his father's penis into his mouth. When this testimony came into evidence, the police officer had already repeated H.C.'s allegations during the investigation and H.C. had already testified. However, the content of H.C.'s recorded trial testimony on Craig's motion in limine was never introduced at trial. Craig's counsel did object initially because the question originally incorporated all of H.C.'s pretrial statements, including some of which defense counsel had not been aware or obtained transcripts, but the question was narrowed and agreed upon by defense counsel because counsel did have all of H.C.'s recorded statements and he could cross-examine the officer about them. Craig argues that the officer's opinion is improper evidence because the opinion invades the province of the jury to determine for itself whether H.C.'s statements had been consistent and is, in essence, a form of impermissible vouching-type evidence which attests to H.C.'s truthfulness.

On two occasions, this court has held that the admission of the impermissible form of vouching testimony is not fundamental error. Okuly v. State (1991), Ind.App., 574 N.E.2d 315, trans. denied; Kelley v. State (1991), Ind.App., 566 N.E.2d 591. As defense counsel acknowledged when he agreed to the question posed by the prosecution, he had the prior statements in his possession and could cross-examine H.C. about them. Defense counsel did address inconsistencies in the prior statements on cross-examination. Under these circumstances, we conclude that admission of the officer's opinion, if error at all, was not fundamental error.

III.

Craig next argues that the trial court committed fundamental error in permitting the testimony of C.D., H.C.'s step-sister, concerning an incident in 1987 when Craig forced her to perform fellatio upon him, in permitting the introduction of two police reports made in 1988 when the incident involving C.D. was reported, and in permitting the investigating officer to repeat C.D.'s charges against Craig. Evidence of the prior incident was offered to show Craig's depraved sexual instinct.

At trial, Craig voiced no objection to the testimony or the documents on any basis and expressly waived any objection as to the hearsay quality of the evidence. Nonetheless, Craig seeks the retroactive benefit of the Indiana Supreme Court's recent decision in Lannan v. State (1992), Ind., 600 N.E.2d 1334.

Once again, this court has held on at least two occasions that the introduction of evidence of prior sexual misconduct which formerly would have been admissible as evidence of a depraved sexual instinct and is not admissible under Fed.R.Evid. 404(b) is not fundamental error. ¹ Stout v. State, 612 N.E.2d 1076 (Ind.App.1993); Ried v. State, 610 N.E.2d 275 (Ind.App.1993) (Barteau J. dissenting). This result is consistent with the Indiana Supreme Court and Court of Appeals decisions which have held generally that the admission of evidence of other offenses does not deprive a defendant of fundamental due process. Lewis v. State (1987), Ind., 511 N.E.2d 1054; Greentree v. State (1976), 265 Ind. 47, 351 N.E.2d 25; Dorsey v. State (1977), 171 Ind.App. 408, 357 N.E.2d 280.

Craig argues that it was fundamental error to permit the introduction of the two police reports because of their hearsay content. But admission of the hearsay was not harmful. The first document is a police report naming C.D.'s mother's boyfriend as the alleged perpetrator, not Craig. It reflects an anonymous report from someone who had overheard a conversation among family members that C.D. may have been molested. This statement is innocuous. The document also contains a report of a statement from the caller that C.D. had been observed engaging in inappropriate sexual behavior. Evidence of similar effect was purposefully elicited by Craig on cross-examination of H.C.'s mother.

The second document is a two-paragraphsummarization of the police officer's investigation. For the most part, it contains the officer's observations. However, it does contain the specific charges, in the first paragraph, that C.D. had accused Craig, her stepfather, of making her touch his penis. The second paragraph repeats what C.D. had told her mother, namely, that Craig had made her hold his penis...