Hestand v. State, 1281S340
| Decision Date | 26 October 1982 |
| Docket Number | No. 1281S340,1281S340 |
| Citation | 440 N.E.2d 1121 |
| Parties | Kenneth L. HESTAND, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Supreme Court |
John P. Avery, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., Frank A. Baldwin, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant (Appellant) was convicted of Child Molesting, Ind.Code Sec. 35-42-4-3(c) (Burns 1979) and was sentenced to thirty (30) years imprisonment.
This direct appeal seeks review upon the issue of whether the trial court erred in refusing to admit into evidence a tape recording of an alleged telephone conversation between the defendant and the prosecutrix.
The evidence most favorable to the State discloses that on August 29, 1980, the prosecutrix, then 12 years of age, met the defendant at the Emerson Theatre and went for a ride with him on his moped. After they had been riding for awhile, the defendant offered her marijuana and contraceptives, both of which she declined. He then asked her to kiss him and to perform fellatio on him. When the victim refused, he struck her with a blackjack, and held a knife to her throat. She then submitted to his demands and he attempted to have sexual intercourse with her. Thereafter he drove her to her home.
The prosecutrix told no one of the incident until November 16, 1980, her birthday, at which time she told her mother. A medical examination showed no abnormality or injury to her and further revealed that her hymenal ring was present and normal. The prosecutrix identified the defendant as her assailant and testified that she had had no contact with him since the August 29th incident.
The defendant denied that the incident had occurred and attacked the credibility of the prosecutrix, testifying that she had contacted him subsequent to August 29th. In an effort to corroborate his testimony that the subsequent contact had occurred, defendant offered to play a tape recording of a conversation that purportedly took place between them some time late in September, 1980. Defendant's contention is that the tape recording would reveal that the prosecutrix telephoned him and ask him to take her to school. The criminal incident having allegedly occurred prior to the commencement of the school term, the tendered evidence corroborated his testimony that she had contacted him subsequent to the incident.
The tape was admitted for purposes of the record; but after having been played outside the presence of the jury and upon the State's objection, it was not played for the jury to hear. The ruling of the trial court was as follows:
" * * * the Court is going to rule that [the recording] is not admissible since it has not been provided to the State * * * and the Court is of the opinion that it is not clear enough that the jury could make any interpretation and would, in fact, speculate as to it. The defendant may testify he did tape record it and what she mentioned on the tape recording.
The defendant argues that the trial...
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...need only be of such clarity that, when taken as a whole, it does not lead the jury to speculate about its content. Hestand v. State, (1982) Ind., 440 N.E.2d 1121; Pettit v. State, (1979) 272 Ind. 143, 396 N.E.2d 126. We also have held that trial courts possess wide discretion to determine ......
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