Fox v. State

• Decision Date: 11 October 1990
• Docket Number: No. 72S00-8811-CR-907,72S00-8811-CR-907
• Citation: 560 N.E.2d 648
• Parties: Larry D. FOX, Sr. Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 648

560 N.E.2d 648

Larry D. FOX, Sr. Appellant, v. STATE of Indiana, Appellee.

No. 72S00-8811-CR-907.

Supreme Court of Indiana.

Oct. 11, 1990.

Russell A. Johnson, Jones Loveall and Johnson, Franklin, for appellant.

Linley E. Pearson, Atty. Gen., Gary Damon Secrest, Deputy Atty. Gen., Roger L. Duvall, Pros. Atty. of Scott County, Scottsburg, for appellee.

GIVAN, Justice.

A jury trial resulted in the conviction of appellant of Murder for which he was sentenced for forty (40) years.

The facts are: On March 29, 1986, appellant and his girl friend Joyce Beyers, the victim, arrived at Steven Manlief's home to prepare a boat for an outing on Hardy Lake in Scott County, Indiana. After Manlief showed appellant and Joyce Beyers how to operate the boat, he left to pick up his date to go boating with appellant and Beyers. However, upon their arrival at the lake, Manlief's date indicated she was afraid of the water and did not wish to go boating. Thereafter appellant and Beyers proceeded to go boating by themselves.

At approximately 8:00 p.m., Mr. and Mrs. Meeks, who lived about one-fourth mile from the lake, heard a woman scream three times followed by a man's voice in despair. The Meeks noticed a boat with a spotlight looking for something in the water and called the Sheriff. Another couple, James and Beth Shelton, were fishing on the shore of Lake Hardy and heard the man's cries. They also called the Sheriff. Another group of people were Chris and Gary Schmelzle, their son, and another couple Mike and Joan Cathcart. They also heard a man crying and saw a boat circling in the water looking for something.

Appellant gave a statement to the police as to what happened. The police searched for the body without success. Appellant also gave a written statement to the police the following day. In these statements, appellant indicated that while he was driving the boat, he heard a woman yell and turned around to find Beyers missing from the rear of the boat. Appellant stated that he turned the boat around and returned at a high rate of speed and started searching for her. He jumped into the water to search but to no avail. Appellant indicated that he searched for approximately an hour without success and thereafter scattered life preservers around the area and went for help.

The body of Joyce Beyers was recovered on April 26, 1986 and taken immediately to Indianapolis for an autopsy by Dr. John Pless. Her clothing was neat with her shirttail tucked in and her shoes were still intact. An autopsy performed by Dr. Pless revealed that on the back of the victim's head there were two injuries adjacent to both sides of older lacerations which were contusions inflicted by blunt force. There also were multiple contusions on her right arm and on both legs, the lungs were relatively light with very little fluid in them, and she had a blood alcohol content of .06. Dr. Pless was of the opinion that the contusions were from a blunt force which could have caused unconsciousness. In addition, he said that these injuries could have been inflicted in or out of the water and before or after unconsciousness. Dr. Pless did not find anything in his examination which indicated a natural cause of death. He concluded that the victim's cause of death was asphyxia due to drowning but could not determine the manner of the death.

Appellant contends the trial court erred in allowing the State to present into evidence Exhibit 14. This exhibit was a temporary protective order which was not in effect on the date of the offense. The order states that it is against Larry D. Fox, Jr., whereas appellant is Larry D. Fox, Sr.

At trial no issue was made of the fact the document referred to Larry D. Fox, Jr. rather than Sr. An examination of the record discloses that Jr. at the time of trial was a fifteen-year-old boy who was the son of appellant and the decedent. It is clear from the argument presented to the trial court that the parties knew the order was issued against appellant. At trial, all presumed the Jr./Sr. identification to be a scrivener's error. We see no merit to appellant's attempt to raise this issue on appeal.

Appellant contends this exhibit procured by the victim against him approximately six weeks before the crime lacked probative value for its admission. The State maintained that the purpose of the exhibit was to indicate a possible motive on behalf of appellant. The jury was informed that the order was not in effect at the time of the offense, but was another piece of evidence for them to consider.

Appellant also claims the exhibit was hearsay. This Court has long recognized the public records exception to the hearsay rule which permits records prepared by an official pursuant to statutory authority or required by the nature of the office to be admitted as evidence, if properly certified or authenticated. Ind.Code Sec. 34-1-17-7; Clark v. State (1982), Ind., 436 N.E.2d 779. The record here discloses that the order and notice were properly certified and therefore qualified as an exception to the hearsay rule.

As to the relevance of the document, evidence of motive is relevant in the proof of a crime. Halbig v. State (1988), Ind., 525 N.E.2d 288. The admission of evidence having a tendency to create an inference of motive is within the trial court's discretion. Id. Likewise, all circumstances relative to or tending to shed light on the intent or motive of a defendant or tending fairly to explain his actions are admissible even though they occurred prior to the crime. Hart v. State (1978), 268 Ind. 358, 375 N.E.2d 221. In the case at bar, the trial judge did not abuse his discretion in admitting Exhibit 14.

Appellant contends the trial court erred in allowing the State to present evidence of an alleged incident occurring approximately six months prior to the crime in question.

State's witness, Ronald Abner, described a date he had with the victim a few months prior to her death. He described how appellant entered the decedent's home without knocking, asked him to leave, and then threw the decedent to the floor.

While prior acts of misconduct are generally inadmissible, proof of a defendant's prior assault or battery upon, or threats made to, a homicide victim are admissible to show motive or intent. King v. State (1987), Ind., 508 N.E.2d 1259. The State cites Johnson v. State (1989), Ind.App., 544 N.E.2d 164, trsf. denied and acknowledges that the admission of this testimony to show intent or motive may have been error in light of the Johnson decision. In Johnson, the Court of Appeals stated:

"In the present case, Johnson's prior acts of violence have a single nexus--albeit an important nexus--the victim, Florence Stokes. But the earlier crimes are not tangibly connected to each other or to the present crimes. They are not unusual, distinctive, or similar to each other or to the present beating, abduction, and threat in any way.

Nothing indicates Johnson's crimes arose out of a common plan or scheme. Instead, it would appear that they all arose out of separate, distinct crisis situations in the on-going saga of Johnson's and Stokes's "off and on" romantic relationship. All the incidents are separated by significant periods of time.

* * * * * * Today, we will not allow evidence that Johnson has the propensity to beat Stokes to prove a present beating." Id. at 170-71.

In Johnson, the defendant was being prosecuted for a specific assault on the victim, who gave direct evidence concerning that assault. This was not a case where it was necessary to establish the corpus delicti by circumstantial evidence which would bring into play the defendant's motive or scheme or plan. The case at bar more nearly parallels the situation found in King, supra. There the defendant had been charged with homicide of the victim and it became necessary to establish the motive or intent. This Court held that under those circumstances it was proper to show prior attacks upon the victim. In addition, we note that although appellant did unsuccessfully seek a pretrial motion in limine, he did not object when Abner was questioned as to the prior attack. Appellant thereby waived his right with regard to Abner's testimony. Mason v. State (1989), Ind., 539 N.E.2d 468. We find no error in the admission of the evidence.

Appellant contends the trial court committed fundamental error in failing to admonish the jury or remedy prejudice caused by prosecutorial misconduct in referring to appellant's failure to testify and misquoting evidence. Fundamental error is error that if not corrected would deny a defendant fundamental due process. See Haymaker v. State (1988), Ind., 528 N.E.2d 83.

In determining whether a prosecutor in a criminal case has engaged in prosecutorial misconduct, the court looks at the following factors:

1. The Court first determines whether such misconduct occurred.

2. The Court then considers whether the misconduct, under all the circumstances placed the defendant in a position of grave peril to which he should not have been subjected.

3. Whether the misconduct results in subjecting the defendant to grave peril is determined by the probable persuasive effect of the misconduct on the jury's decision and not by the degree of impropriety of the conduct.

4. Finally, a situation of repeated instances evidencing a deliberate attempt to improperly prejudice the defendant may require a reversal. Maldonado v. State (1976), 265 Ind. 492, 355 N.E.2d 843.

In his opening statement, the prosecutor stated:

"[A]nd the fact remains that come that evening of the 29th there were two people on the boat, Larry Fox and Joyce Beyers. Two people, and as I stand before you today ... there are only two people who can recite the words that were spoken, who can tell you the sights the eyes saw on that boat on that evening, only two people, one of them stands here today charged with murder, and the other has been dead almost two years."

In support of appellan...