Fleener v. State, 41A01-9407-CR-236
| Citation | 648 N.E.2d 652 |
| Decision Date | 22 March 1995 |
| Docket Number | No. 41A01-9407-CR-236,41A01-9407-CR-236 |
| Parties | Carl P. FLEENER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Court of Appeals of Indiana |
Carl P. Fleener appeals from his convictions on three counts of Child Molesting, all as Class B felonies. We affirm.
Fleener raises eleven issues for our review on appeal, which we consolidate and restate as:
1. Whether the trial court erred when it allowed testimony from the victim's mother and grandmother regarding statements made by the victim.
2. Whether the trial court erred when it allowed testimony from an examining physician concerning the types of abuse perpetrated against the victim.
3. Whether the trial court erred when it allowed the testimony of the psychologist who treated the victim.
4. Whether the trial court erred when it admitted State's Exhibit Number Seven.
5. Whether the trial court erred when it allowed the State to pose three hypothetical questions to an expert witness.
6. Whether the trial court erred when it denied Fleener's motion for a mistrial based on alleged prosecutorial misconduct.
Fleener was charged with three counts of child molesting, all as class B felonies, for acts perpetrated against his seven-year-old stepdaughter, T.S., during "the fall or winter of 1990." Record at 31, 33 and 35. At trial, T.S., who was then ten years old, testified regarding acts of anal intercourse, digital-vaginal penetration, and oral sex committed against her by Fleener. T.S.'s younger brother also testified and described an act of anal intercourse which he inadvertently witnessed.
The State presented testimony from Dr. Julie Marks, a pediatrician who examined T.S., and Susan Watson, a psychologist who treated T.S. over the course of one year and three months following these incidents. Dr. Marks testified that T.S.'s physical condition included scarring and thickening of the hymeneal ring, and that such symptoms were indicative of the type of abuse alleged. Watson testified that T.S. suffered from post-traumatic stress syndrome or disorder and that she also exhibited symptoms characteristic of victims of child sexual abuse.
After a trial, the jury found Fleener guilty on each count of child molesting. The trial court then sentenced him to a term of fifteen years, with ten years executed and five years suspended on each count, to be served concurrently.
Fleener first asserts that the trial court erred when, over his hearsay objection, the court allowed T.S.'s grandmother and mother to testify separately regarding statements made by T.S. about the molestations after they had occurred. The State responds that T.S.'s grandmother's testimony was properly admissible pursuant to an exception to the hearsay rule and that her mother's testimony was not hearsay, but rather was admissible to show a course of conduct. We agree with the State in both respects.
First, the State offered the testimony of Shirley Taylor, T.S.'s grandmother, and asked Taylor whether T.S. "had ever made physical complaints to her during the fall or winter of 1990." Record at 251. Taylor answered that when she gave the child a bath during that period, T.S. "always complained that her bottom was sore." Record at 254. Although Fleener objected on hearsay grounds, the trial court allowed Taylor's testimony.
Taylor's testimony concerning T.S.'s complaints was hearsay. " 'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Ind.Evidence Rule 801(c). Hearsay is not admissible at trial unless admitted pursuant to a recognized exception. Ind.Evidence Rule 802. However, "[a] statement of the declarant's then existing ... sensation or physical condition (such as ... pain and bodily health)," may be admitted under the exception permitted in Evidence Rule 803(3). Such was the case here.
T.S., the declarant, made a statement of her then existing sensation or physical condition at a time when she was perceiving this condition, that is, while she was being bathed. See 13 R. MILLER, INDIANA PRACTICE § 803.103B at 622-23 (1995). Therefore, under Rule 803(3), the statement was admissible as an exception to the hearsay rule. The trial court did not err.
Next, during the rebuttal portion of its case, the State offered the testimony of T.S.'s mother, Lisa Bean. Bean was questioned about the reasons that led to her divorce from Fleener following the allegations of child molestation. Instructing her to respond either yes or no, the prosecutor asked Bean whether the divorce occurred because T.S. told her that Fleener had "done something to her." Record at 606. Again, Fleener objected on hearsay grounds and was overruled. The prosecutor argued that Bean's testimony was not hearsay but was instead offered to demonstrate a course of action, why Bean and Fleener had obtained a divorce. Bean then responded affirmatively to the State's question and, as requested, did not elaborate.
Bean's testimony was elicited by the State to rebut a suggestion raised by Fleener during his testimony that T.S.'s mother and grandmother had encouraged the victim's complaint of sexual abuse and had fabricated her story. Fleener testified on direct that Bean had thrown him out of the house one day before T.S.'s allegations of molestation were publicly revealed and that he never understood why he was ordered to leave. On rebuttal, the State then asked Bean why she ended her marriage to Fleener in such an abrupt manner. Bean explained that her daughter's revelations of abuse precipitated the divorce.
We agree with the State that Bean's testimony was not offered to prove the truth of the matter asserted and, thus, was not hearsay. Rather, her statement was offered to explain to the jury why her marriage to Fleener had ended. The trial court did not err when it allowed Bean's testimony.
Fleener contends the trial court erred when, over his hearsay objection, the court allowed certain testimony of Dr. Julie Marks, the physician who examined T.S. in the child sexual abuse clinic of Wishard Hospital in Indianapolis. The State responds that the testimony was not hearsay. We agree with the State.
During the State's direct examination of Dr. Marks, the prosecutor asked Marks "what acts of abuse were alleged" as part of T.S.'s medical history which prompted her examination. Record at 298. Fleener immediately asserted a hearsay objection and requested permission to ask preliminary questions of the witness, which the court allowed. After Fleener completed his preliminary questions and reasserted his objection, the court allowed the State to question Dr. Marks again. Dr. Marks answered that the alleged acts of abuse were "oral sex, anal intercourse and digital, vaginal penetration." Record at 301.
Dr. Marks' testimony on this point was not offered to prove the truth of the matter asserted. Dr. Marks' indicated in her testimony that she obtained T.S.'s medical history prior to conducting her examination, as was her usual practice. She testified that "[t]he history we use usually comes from the accompanying adult, or any reports that we have that goes through our social worker in the clinic." Record at 271. According to Dr. Marks, the specific allegations of sexual abuse perpetrated upon T.S. in the present case were communicated to her as a routine part of obtaining T.S.'s medical history. Finally, the State questioned Marks regarding whether her findings were consistent with the allegations of abuse that had been made, to which Marks replied affirmatively. Dr. Marks then recited the alleged acts of abuse.
In order to establish the relevancy of Dr. Marks' testimony concerning whether her conclusions were consistent with the alleged acts of abuse, it was necessary for the jury to be aware that Dr. Marks had prior knowledge of those allegations. Thus, Dr. Marks' statement was offered to support the validity of her professional conclusions, not to prove the truth of the allegations. We conclude the trial court did not err.
Next, Fleener raises a number of contentions regarding the testimony of Susan Watson, a psychologist who treated T.S. over the course of one year and three months following the acts of molestation. Fleener asserts the trial court erred when it allowed Watson to testify about (a) T.S.'s perception of reality, (b) characteristics common among victims of child abuse and whether T.S.'s behavior was consistent with those characteristics, (c) statements made by T.S. during therapy sessions, and (d) T.S.'s propensity to exaggerate or fantasize about sexual matters. The State maintains that the trial court did not err in allowing such testimony. The State is correct.
During the State's direct examination of Watson, she was asked for her opinion "as to [T.S.'s] perception of reality." Record at 391. Fleener objected and argued that Evidence Rule 704(b) prohibited a witness from giving such an opinion because it invaded the province of the jury. After the trial court overruled Fleener's objection, Watson answered that T.S. "is in touch with reality." Record at 394. Watson then went on to explain upon what factors her opinion was based.
Evidence Rule 704(b) prohibits a witness from testifying as to "opinions concerning intent, guilt, or innocence in a criminal case; the truth or falsity of allegations; whether a witness has testified truthfully; or legal conclusions." Rule 704(b) was designed to preserve existing Indiana law by providing that witnesses may not testify to certain specified...
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