Garner v. State

• Decision Date: 29 August 2001
• Docket Number: No. 31A01-0012-CR-437.,31A01-0012-CR-437.
• Citation: 754 N.E.2d 984
• Parties: Joseph B. GARNER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

754 N.E.2d 984

Joseph B. GARNER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 31A01-0012-CR-437.

Court of Appeals of Indiana.

August 29, 2001.

Rehearing Denied October 15, 2001.

Matthew Jon McGovern, Louisville, KY, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Adam M. Dulik, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

KIRSCH, Judge.

After a jury trial, Joseph B. Garner was convicted of two counts of child molesting as Class A felonies and one count of child molesting as a Class C felony.¹ He now appeals, raising the following issues for review:

I. Whether the charging information was unconstitutionally vague because it failed to specify particular acts and times of the sexual contact between Garner and the victim and therefore failed to give Garner necessary detail to prepare a defense.

II. Whether the trial court erred in admitting evidence of uncharged sexual conduct with the victim and her sister.

III. Whether the trial court erred in admitting into evidence the depositions of two witnesses who were not available to testify at trial because they were out of state on vacation.

IV. Whether the trial court erred in imposing consecutive maximum sentences based on its interpretation of IC XX-XX-X-X(d)(1) and in its finding of aggravating and mitigating factors, and whether the resulting sentence is manifestly unreasonable.

We affirm.

FACTS AND PROCEDURAL HISTORY

In 1998, Garner became involved in a romantic relationship with Anna Camp. Record at 411. In July, he moved in with Camp and her three daughters, S.C., age thirteen, T.C., age twelve, and L.C., age five. Id. at 410, 411, 413. In July 1999, the family moved to a different home. Id. at 474. While living with the family in the new home, Garner had sexual intercourse with T.C. on numerous occasions. Id. at 474, 478, 479. He also engaged T.C. in oral and anal sex, as well as fondling of her breasts. Id. at 490, 491. On one occasion, he directed T.C. and S.C. to perform oral sex on him simultaneously. Id. at 482.

Camp became suspicious and asked T.C. if she were having sex with Garner. Id. at 424. After T.C. replied affirmatively, Camp took her to the hospital to have a rape kit administered. Id. at 425. T.C. refused, but did have blood drawn. Id. The blood test revealed that T.C. was pregnant. Id. at 428. Subsequent DNA tests revealed that Garner was responsible for impregnating T.C. Id. at 589. Upon questioning, Garner admitted that he had vaginal and oral sex with T.C. "five or six" times. Record at 14.

Garner was arrested and charged with three counts of molesting T.C. by performing or submitting to sexual intercourse, performing or submitting to deviate sexual conduct, and performing or submitting to fondling or touching during the months of July to November 1999. Id. at 7-9.

At the trial, T.C. testified about specific instances of molestation and stated that Garner had engaged her in various sex acts more than once. Id. at 488. She also described the occasion on which she and S.C. performed oral sex on Garner. Id. at 482. S.C. later testified about that incident as well. Id. at 515.

Two persons involved in the chain of custody of the specimens upon which the DNA tests were performed were out of state on vacation. Id. at 240, 241. The trial court admitted the depositions of these witnesses into evidence in lieu of their live testimony. Id. at 249.

After the jury returned guilty verdicts on all three counts, the trial court, finding numerous aggravators, sentenced Garner to the maximum sentence on each of the three counts and ordered the sentences to run consecutively, for a total sentence of 108 years.

DISCUSSION AND DECISION

I. Sufficiency of the Charging Information

Garner contends that the charging information was unconstitutionally vague and failed to inform him adequately of the charges against him to allow him to prepare a defense. His first complaint is that none of the three charges specify a certain date upon which the offense was alleged to have been committed. Rather, each count charged only that Garner had committed the offense "sometime during the months of July, August, September, October, and/or November, 1999." Record at 7, 8, 9.

The State asserts that Garner has waived this argument because he failed to challenge the factual allegation in the charging information prior to his arraignment and trial. See Jackson v. State, 643 N.E.2d 905, 908 (Ind.Ct.App.1994),

trans. denied (1995) (any challenge to the adequacy of an information must be made by a motion to dismiss prior to the arraignment; failure to do so is regarded as waiver). Garner attempts to avoid waiver of this argument by claiming that the error contained in the charging information amounts to fundamental error. In order to be fundamental, error must be so prejudicial to the rights of a defendant that he could not have received a fair trial. Marshall v. State, 602 N.E.2d 144, 147 (Ind.Ct. App.1992),

trans. denied. Waiver may be avoided only if the mistake constitutes a clearly blatant violation of basic and elementary principles and the resulting harm or potential for harm must be substantial. Id.

IC XX-XX-X-X(a)(5) and (6) provide:

"(a) The indictment or information shall be in writing and allege the commission of an offense by:

. . .

(5) stating the date of the offense with sufficient particularity to show that the offense was committed within the period of limitations applicable to that offense;

(6) stating the time of the offense as definitely as can be done if time is of the essence of the offense[.]"

An information that enables "the accused, the court and the jury to determine the crime for which conviction is sought" satisfies due process. Grant v. State, 623 N.E.2d 1090, 1093 (Ind.Ct.App.1993), trans. denied (1994) (quoting Green v. State, 575 N.E.2d 296, 299 (Ind.Ct.App. 1991), trans. denied (1992)).

Our courts have consistently held that where time is not of the essence of the offense, it is sufficient to allege time specifically enough to establish that the offense was committed within the period of limitations. Vail v. State, 536 N.E.2d 302, 302-03 (Ind.Ct.App.1989). Moreover, our supreme court has concluded that time is not of the essence in the crime of child molesting. Barger v. State, 587 N.E.2d 1304, 1307 (Ind.1992); Hodges v. State, 524 N.E.2d 774 (Ind.1988). The court explained that this conclusion was reasonable because "[I]t is difficult for children to remember specific dates, particularly when the incident is not immediately reported as is often the situation in child molesting cases. 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." Barger v. State, 587 N.E.2d at 1307.

Nonetheless, several defendants convicted of child molesting have challenged on appeal charging instruments which include a range of dates or a period of time. Most recently, in Buzzard v. State, 712 N.E.2d 547, 551-52 (Ind.Ct.App.1999), trans. denied, the defendant argued that the charging information filed against him, which alleged that the charged events took place over one and one-half years, was insufficient because it failed to describe with particularity the time the alleged molestations occurred. Although the evidence demonstrated that the molestations could not have occurred during a portion of that time, we found no fundamental error, citing earlier cases in which charging time periods of two weeks to over two years have been upheld against challenge. Id.

Similarly, in Hodges, 524 N.E.2d at 774, our supreme court considered an appellant's contention that the information against him failed to satisfy the requirements of IC XX-XX-X-X(a)(5)-(6). The information alleged that the defendant had committed child molesting in a twenty-five month time period. The defendant asserted that this method of charging a broad time period prevented him from presenting alibi or insanity defenses. The court, however, disagreed, noting that a similar lack of specificity had been approved in prior cases. Id.

Finally, in Hoehn v. State, 472 N.E.2d 926, 928-29 (Ind.Ct.App.1984), the defendant was charged with molestation by fondling in a two-month period. The victim testified that the defendant had fondled him on three occasions and that the last of these was after school had been dismissed for the summer and a few days after attending a party at the defendant's arcade. We concluded that because time was not of the essence, and the date of the offense was stated as having occurred within the period of limitations and as definitely as could be done based on the victim's memory, it was permissible to charge the defendant for a specified time period. Therefore, the trial court did not err in overruling the defendant's motion to dismiss. Id. See also Jones v. State, 581 N.E.2d 1256, 1257 (Ind.Ct.App.1991),

abrogated on other grounds by Steward v. State, 652 N.E.2d 490 (Ind.1995) (rejecting defendant's argument that an information charging the molestation of the defendant's adoptive daughter during nearly two years was too general to allow him to raise an alibi defense); Merry v. State, 166 Ind.App. 199, 210, 335 N.E.2d 249, 256-257 (1975) (rejecting defendant's claim that charge of molestation within a three-year period was too broad).

Here, although the charging information did not specify the exact dates on which the criminal conduct was alleged to have occurred, it did narrow the range of dates to five months, a much smaller span of time than the three years that we approved in Merry. T.C. testified that she and her family moved in July 1999 and that the acts of molestation occurred after that time and ended before Christmas of that year. Based on this information, the State charged Garner with as much specificity as to time as was possible. Further,...