Downs v. State
| Decision Date | 24 October 1995 |
| Docket Number | No. 48A05-9411-CR-435,48A05-9411-CR-435 |
| Citation | 656 N.E.2d 849 |
| Parties | Cas DOWNS, Jr., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Cas Downs, Jr. appeals from a jury determination finding him guilty of one count of child molesting, 1 a Class B felony and one count of child molesting, 2 a Class C felony. Downs raises four issues, restated as:
1. Was the evidence sufficient to support the Class B felony child molesting conviction;
2. Was it error to provide additional instruction to the jury after deliberations had commenced;
3. Was it error to deny Downs's request for a continuance of the sentencing hearing; and
4. Was the sentence manifestly unreasonable.
We affirm.
The facts viewed in the light most favorable to the verdict reveal that Downs, a former school teacher and principal, befriended S.K., a young girl living in Downs's neighborhood. Downs began to sexually molest S.K. when she was approximately eight years old. The molestations continued until S.K. moved to Indianapolis around her twelfth birthday.
The State charged Downs with fondling S.K. while she was under the age of twelve and sexual deviate conduct for performing oral sex on S.K. while she was under the age of twelve. Downs provided the police with a videotaped statement admitting the majority of the allegations. Other facts will be supplied as necessary.
Count I of the Information charged Downs with child molesting as a Class B felony. In order to convict Downs of the B felony, the State had to prove: (1) Downs; (2) knowingly or intentionally; (3) performed deviate sexual conduct; (4) with a child under twelve years of age. Ind.Code 35-42-4-3(a). 3
Downs contends that the State failed to prove that S.K. was under the age of twelve when the deviate sexual conduct occurred. Contrary to this contention, Downs himself provided sufficient evidence that the deviate sexual conduct occurred prior to S.K.'s twelfth birthday. In his videotaped statement to police, given April 21, 1993 and introduced into evidence at trial, Downs discussed the oral sex allegation:
Last summer in July ... all of them went up and worked at Elwood ... in uh corn detasseling ... after they had been working maybe a couple weeks, and [S.K.] was down to our house one day ... and [S.K.] went in the house ... so I went in ... [and [S.K.] told me about an oral sex episode between a boy and girl on the detasseling bus] ... But I thought she knew quite a bit because oral sex I wouldn't think that a twelve-year-old would even know anything about and she was about twelve at that time because it was last summer in July so we did experiment and did it one time and she said she didn't like it--it was nasty--I did it to her ...
"Last summer in July" would have been July of 1992. S.K. did not turn twelve until August 14, 1992.
While Downs contends that the statement is not specific enough to establish that the act took place prior to S.K.'s twelfth birthday, we disagree. The prosecutor argued that Downs's statement established that the act took place in July of 1992. Downs argued that it was inconclusive as to whether the act occurred prior to S.K.'s twelfth birthday. The jury heard the videotaped admission, and was faced with this question. We will not reweigh that decision on appeal.
The Information in Count I alleged that:
From on or about the 1st day of June, 1991, to on or about the 1st day of November, 1991, in Madison County, State of Indiana, CAS A. DOWNS, JR., did perform deviate sexual conduct with [S.K.], a child under the age of twelve (12) years.
After being instructed and beginning deliberations, the jury sent a note to the trial court which read:
On the first Count, does the act have to have occurred in the (dates of June 9th, 1991 to November, 1991).
After discussion with counsel, the trial court determined that the jury should have been instructed on this issue and that he would provide the jury with a supplemental instruction containing the answer to the jury's question. Defense counsel objected to any further instruction of the jury. The jury was brought into open court and provided with the following instruction:
The information charges that Count I, was committed from on or about the 1st day of June, 1991 to on or about the 1st day of November, 1991. If you find that the crime charged in Count I was committed the State is not required to prove it was committed during the particular dates alleged."
The trial court did not reread all of the instructions at the time, by agreement of the parties.
Downs contends that the trial court erred in providing the supplemental instruction to the jury. Generally, any additional instruction to the jury once deliberations have begun is impermissible. Crowdus v State (1982), Ind., 431 N.E.2d 796, 798. This general prohibition exists to protect against giving special emphasis, inadvertent or otherwise, to a particular issue and to guard against the possibility that the additional instruction of the jury might suggest a resolution to an issue. Id. One limited and narrow exception to this rule has been recognized. Id.; Jenkins v. State (1981), Ind., 424 N.E.2d 1002, 1003.
When confronted with a question from a jury which has commenced deliberation, the challenge to the trial judge is to respond in a manner which accords with the legal requirements for final instructions and which is fair. The path is extremely hazardous for the court that would depart from the body of final instructions and do other than reread the final instructions in responding to jury questions. Such a departure will be warranted in only the most extreme circumstances. Brannum v. State (1977), 267 Ind. 51, 366 N.E.2d 1180; Cameron v. State (1979), Ind. , 383 N.E.2d 1039. It must serve to amend the final instructions by adding a necessary one previously omitted or correcting an erroneous one, and must be fair to the parties in the sense that it should not reflect the judge's view of factual matters. Hall v. State (1856), 8 Ind. 439. Thus, it is only when the jury question coincides with an error or legal lacuna in the final instructions that a response other than rereading from the body of final instructions is permissible.
The trial court held that the jury should have been instructed that the State did not have to prove that the deviate sexual conduct occurred within the dates alleged in the information, and the failure to give that instruction created a legal lacuna 4 properly remedied by additional instruction of the jury. We agree with the trial court that this case fits the legal lacuna exception recognized by Crowdus and Jenkins.
There was a variance between the dates alleged in the information and the testimony at trial. The information stated the offense occurred between June and November of 1991. S.K. was non-specific about the dates when deviate sexual conduct occurred. Thus, Downs's own admission to performing cunnilingus on S.K. became the focus of the question whether S.K. was over twelve at the time of the deviate sexual conduct. The prosecution argued that Downs admitted committing the act in July of 1992 while the defense contended that his admission was not conclusive enough as to the date to establish beyond a reasonable doubt that S.K. was under the age of twelve at the time of the offense.
A variance between the charging information and the proof at trial is material only if it misleads the defendant in the preparation of his defense or when it subjects him to the likelihood of another prosecution for the same offense. Dellenbach v. State (1987), Ind.App., 508 N.E.2d 1309, 1312. If the variance is not material, then the information may be amended to conform to the evidence, Hegg v. State (1987), Ind., 514 N.E.2d 1061, 1063 (), or the jury may be instructed that the State need not prove the offense occurred within the dates alleged. See Indiana Pattern Jury Instruction No. 12-35.
Downs urges that the date of the offense was material, because it was disputed whether S.K. was over or under the age of twelve at the time the offense occurred. In child molesting cases, time is not of the essence. Barger v. State (1992), Ind., 587 N.E.2d 1304, 1307, reh'g denied. "The exact date becomes important only in limited circumstances, including the case where the victim's age at the time of the offense falls at or near the dividing line between classes of felonies." Id. Because the offense fell near the dividing line of S.K.'s twelfth birthday, at first blush it appears that a variance between the charging information and the proof at trial would be material. However, as already noted, the dates alleged in the information did not come...
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