Day v. State
| Decision Date | 22 November 1994 |
| Docket Number | No. 44A04-9401-CR-22,44A04-9401-CR-22 |
| Citation | 643 N.E.2d 1 |
| Parties | Rodney G. DAY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. 1 |
| Court | Indiana Appellate Court |
Appellant-defendant Rodney G. Day challenges his two convictions for Child Molesting 2, as Class C felonies.
On January 8, 1993, the two ten-year-old victims, C.W. and H.W., spent the night at Day's home with Day's daughter. During the evening, Day fondled C.W.'s and H.W.'s breasts, buttocks, and vaginal area several times. Day was charged with two counts of child molesting and his trial date was set for 1 p.m. on August 11, 1993.
On August 10, the State filed a notice of intent to offer the testimony of three witnesses regarding Day's prior sexual misconduct pursuant to Federal Rule of Evidence 404(b). On the morning of August 11, Day filed a motion in limine to exclude the three witnesses. The court held a hearing on the matter the same morning and ultimately denied Day's motion. Day immediately requested a continuance of the trial in order to depose the new witnesses. The trial court denied the continuance and advised Day to interview the witnesses that afternoon. Day did not heed the court's advice.
During jury selection, the panel of veniremen was exhausted without seating a full jury. Therefore, the court ordered the sheriff to obtain additional potential jurors from bystanders in the local area. Day objected to this procedure to summon talesmen, complaining that the sheriff was likely to select people who were pro-law enforcement or who were known to the sheriff. The court overruled Day's objection stating that it was following standard procedure.
In the State's opening argument, it explained that witnesses would be testifying as to Day's prior sexual conduct to prove his intent regarding his acts towards C.W. and H.W. Day reserved his opening statement until the beginning of his case-in-chief. During the State's case-in-chief, when the three witnesses who testified concerning Day's prior sexual conduct were called, Day objected to each witness' testimony. In defense counsel's belated opening statement and case-in-chief, Day admitted the touchings but denied any improper intent to arouse or satisfy his sexual desires. The jury found Day guilty of molesting both girls.
Day first contends that the trial court abused its discretion by denying his motion for a continuance upon the State's filing notice one day before trial of three witnesses that would provide F.R.E. 404(b) evidence of Day's prior sexual misconduct. Day argues that the denial of a continuance precluded him from adequate preparation and an opportunity to depose the three new witnesses.
Day relies upon IND.CODE § 35-37-4-15(b)(1), which requires fifteen days notice before trial that the State intends to offer evidence of the defendant's act of child molesting against a different victim. However, the statute also allows admission of such evidence at a later date for good cause. I.C. § 35-37-4-15(b)(2). Because this statute became effective February 1, 1994, after Day's proceedings in 1993, it is not controlling. We also observe that we have previously declared that this statute is a nullity since it conflicts with the common law rules of evidence. See Brim v. State (1993), Ind.App., 624 N.E.2d 27, 33, n. 2, trans. denied. Rather, we apply an abuse of discretion standard in this instance. Ind.Trial Rule 53.5. The trial court's ruling is given considerable deference. Vaughn v. State (1992), Ind., 590 N.E.2d 134, 136. We review whether the trial court properly considered the parties' competing interests, and whether prejudice to the movant occurred. Id.
Certainly, Day had an interest in interviewing the witnesses before they took the stand. However, Day admits that he was unofficially advised about one of the new witnesses as early as August 6. Record at 91. Additionally, at the August 11 hearing, the State offered to make the witnesses available that afternoon for interviews, but Day declined. The trial court ordered the State to turn over any statements from the witnesses and advised Day to interview the witnesses that afternoon. R. 94-95.
In Bradberry v. State (1975), 164 Ind.App. 360, 364, 328 N.E.2d 472, 476, Bradberry requested a continuance when the State submitted an additional list of two witnesses prior to trial but subsequent to the deadline for filing a witness list. The trial court conditioned the admission of the witnesses' testimony upon the State's provision of any police reports the witnesses had made and the defendant's opportunity to interview the witnesses before they testified. Id. at 365, 328 N.E.2d at 476. We refused to find an abuse of discretion in denying the continuance in light of the court's conditions and the lack of prejudice. Id. at 365-66, 328 N.E.2d at 477.
The circumstances and conditions imposed here are similar to those in Bradberry. Additionally, Day did not avail himself of the opportunity to interview the witnesses before they testified. Day's only contention of prejudice is his summary statement that the witnesses' testimony irreparably harmed Day's case. Day's vigorous cross-examination of the witnesses reflects that he was able to expose the weaknesses and inconsistencies in the witnesses' testimony. His waiver and the absence of prejudice compel us to defer to the trial court's judgment. No abuse of discretion has been shown.
Next, Day objected that the court's procedure for obtaining talesmen was improper because it was likely that the sheriff would select talesmen who would probably be pro-law enforcement or someone that the sheriff's deputies knew. We reject his unsubstantiated contention.
On appeal, he also adds that the court failed to instruct the sheriff not to call a person who has either solicited or been recommended for the position, pursuant to IND.CODE § 35-37-1-7. This portion of the proceedings is absent from the record. Even assuming the trial court failed to give this instruction, it is not reversible error. Minor irregularities in compliance with statutes directing the selection and calling of jurors will not create prejudice to a defendant's substantial rights See Owen v. State (1979), 272 Ind. 122, 125, 396 N.E.2d 376, 379. "The major requirement is that the system of selection is not arbitrary ... and complete impartiality should be sought." Id. (quotation omitted). Day makes no showing of prejudice. Although he alleges that one of the jurors selected from the talesmen was a spouse of a staff member of the clerk's office, Day does not direct us to any evidence in the record supporting this allegation. Even so, he does not refer to any prejudice resulting from that juror. See Wilson v. State (1989), Ind.App., 536 N.E.2d 1037, 1040, trans. denied. We find no error.
Day's main contention is that the court erred in admitting evidence of his prior molestations of other victims to negate his denial of intent. To sustain child molesting convictions for fondling under I.C. § 35-42-4-3(b), the State must show that Day committed the acts with the specific intent to arouse or satisfy the defendant's sexual desires.
Prior to 1992, a defendant's prior sexual misconduct was admissible in sex offense cases to show the defendant's depraved sexual instinct. Day correctly acknowledges that the depraved sexual instinct rule was abolished in Lannan v. State (1992), Ind., 600 N.E.2d 1334, where our supreme court adopted F.R.E. 404(b). F.R.E. 404(b) places certain limitations upon the admission of evidence of prior conduct. Under F.R.E. 404(b), evidence of other acts is admissible to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. 3 Such evidence is admissible only upon reasonable notice in advance of trial, or during trial if good cause is shown, that the State intends to introduce it at trial. Wickizer v. State (1993), Ind., 626 N.E.2d 795, 797.
Here, we are concerned with the intent exception. Indiana has narrowly construed this exception to avoid the introduction of the forbidden inference that the defendant acted in conformity with his prior bad acts. Id. at 799. The intent exclusion is available only when a defendant goes beyond merely denying...
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