Hodges v. State

Decision Date14 June 1988
Docket NumberNo. 885,885
Citation524 N.E.2d 774
PartiesThomas HODGES, Appellant, (Defendant below), v. STATE of Indiana, Appellee, (Plaintiff below). S 342.
CourtIndiana Supreme Court

Susan K. Carpenter, Public Defender, C.H. Gardner, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Gary Damon Secrest, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

On March 8, 1985, Defendant-Appellant Thomas Hodges was found guilty by a jury in the Tippecanoe County Superior Court of two counts of child molesting, as class C felonies, and two counts of child molesting, as class B felonies. The jury also found Hodges to be an habitual offender. The court sentenced Hodges to ten (10) years on each of the class B felonies and to five (5) years on each of the class C felonies. The sentences were to run concurrently. The sentence was subsequently enhanced by thirty (30) years due to the habitual offender finding. Hodges appeals directly to this court raising the following issues:

1. whether the trial court erred by denying Hodges' Motion to Dismiss two new charges which were joined with the original charges for trial;

2. whether the trial court erred in finding the victim, T.S., a child under 10 years of age, competent to testify;

3. whether the trial court erred in allowing the testimony of R.S., another child victim, under the depraved sexual instinct rule;

4. whether the trial court erred in overruling Hodges' objections to, and denying his motion to strike the testimony of victim T.S., based on vagueness as to the dates when the molestation was to have occurred and her age and intellectual capacity;

5. whether the trial court erred in admitting into evidence two of T.S.'s prior statements over Hodges' hearsay objections;

6. whether the trial court erred in admitting Hodges' incriminating statement over his claim of coercion;

7. whether the trial court erred in allowing the introduction of a statement made by Marsha Hodges over Hodges' objection that it was cumulative and irrelevant;

8. whether the trial court erred in refusing Hodges' tendered instruction no. 2;

9. whether the trial court erred in giving the court's final instruction no. 13, over objection;

10. whether the trial court erred in giving the court's final instructions nos. 20 and 22, over objection;

11. whether the trial court erred during the habitual phase of the trial in admitting into evidence, over objection, certified records of Hodges' prior convictions;

12. whether the trial court erred during the habitual phase of trial in refusing to accept the jury's first verdict, and in requiring the jury to return to their deliberations to correct the verdict.

The evidence most favorable to the verdict below shows that Hodges committed child molesting on T.S., his step-daughter. T.S. was five years old at trial. Using anatomically correct dolls, she related in her own words that Hodges had touched her between her legs and put his penis in her mouth. T.S. testified she had informed her mother. Marsha Hodges, T.S.'s mother and Hodges' wife, testified T.S. had said, on August 31, 1984, that Hodges had touched her. Marsha Hodges also said that on August 26, 1984, she had overheard T.S. tell Hodges "no, I'm telling mommy," while she was downstairs and T.S. and Hodges were upstairs. The State presented evidence of depraved sexual instinct through 12-year-old R.S., previously a neighbor of Hodges, who testified Hodges had touched her breasts twice and on one of those occasions reached in her pants to just past her navel. R.S. testified Hodges said he would want to make love to her if she were 5 or 6 years older. Judith Anderson, a child psychologist, and Elaine Stahl, a case worker with the county child protective services, testified as to statements and counseling with T.S. Following a polygraph examination, Hodges made an incriminating statement to the police. The tape recording of that statement was played for the jury. Hodges presented no evidence at trial.

I

In October, 1984, Hodges was charged with three counts of child molesting, under cause no. S-5097. Trial was set for March 5, 1985. On February 6, 1985, an additional count was filed consisting of an information of habitual offender. On March 1, 1985, the State filed four additional counts of child molesting, under cause no. S-5219, Counts I and II of which involved the same victim. At the same time, the State moved to join all of the charges for trial. In the interest of judicial economy and since Counts I and II were of the same type, their joinder was permitted pursuant to Ind.Code Sec. 35-34-1-9(a)(1), resulting in Hodges being charged with five counts of child molesting against T.S. On March 6, 1985, Hodges filed a Motion to Dismiss the counts from cause no. S-5219, on the grounds the information insufficiently described the offense by not alleging a specific date of offense, and that the new prosecution had not been brought in a timely manner because the offenses occurred within the last 2 1/2 years. The court denied the motion and the trial proceeded.

Hodges argues the trial court erred by joining Counts I and II from cause no. S-5219 to the original charges for trial. Hodges first argues the two counts from cause no. S-5219 should have been dismissed because they were not timely filed, pursuant to Ind.Code Sec. 35-34-1-4(a)(8). However, here he asserts a different argument than the staleness of the charges originally argued in his Motion to Dismiss. He argues here that he was not afforded adequate time to prepare a defense to the two new charges. He complains he was not informed of his rights or the nature of the charges filed against him because he received no initial hearing as required by Ind.Code Sec. 35-33-7-4. Further he asserts no omnibus date was set as required by Ind.Code Sec. 35-36-8-1. Hodges also argues the joinder statute, Ind.Code Sec. 35-34-1-10, contemplates only the joining of previously filed charges, not those filed at the same time as the joinder motion. As these grounds were not raised at trial nor in Hodges' motion to dismiss and appear for the first time on appeal, they are therefore waived. Cox v. State (1986), Ind., 493 N.E.2d 151, 161; Beland v. State (1985), Ind., 476 N.E.2d 843, 845. If Hodges felt he needed additional time to face the new charges, he was under a duty to move for a continuance to preserve his rights. In fact, the State moved for a continuance because of the joinder motion, but the motion was denied. Further, Hodges has not alleged any prejudice resulting from the joinder.

Hodges argues the two counts in cause no. S-5219 were so vague as to the time of occurrence that they failed to state the offenses with sufficient certainty, as required by Ind.Code Sec. 35-34-1-2(a)(5) and (6). Each count alleged the act occurred from August 1982 to September 1984. Hodges claims that because the two informations are identical, he could not distinguish one count from the other. Hodges argues this type of charge denies his constitutional rights to be informed of the nature and cause of the accusations and to be assisted by counsel. Hodges asserts that because the time period was so broad, he was prevented from presenting certain defenses such as an alibi or an insanity defense. However, a similar lack of specificity as to time has been approved in Merry v. State (1975), 166 Ind.App. 199, 209-12, 335 N.E.2d 249, 256-57, trans. denied. See also Hoehn v. State (1984), Ind.App., 472 N.E.2d 926, 928.

If offenses are joined solely because they are of same or similar character, a defendant has an automatic right to have the counts be tried separately, and the court has no discretion to deny the severance motion. Abner v. State (1985), Ind., 479 N.E.2d 1254, 1261; Hobson v. State (1986), Ind.App., 495 N.E.2d 741, 743; Ind.Code Sec. 35-34-1-11. The burden is on defendant to make a timely motion for severance. Muse v. State (1981), Ind., 419 N.E.2d 1302, 1305. A defendant waives his right to have similar offenses tried separately where he fails to make timely motion for severance. Id. at 1305; Ind.Code Secs. 35-34-1-9(a)(1), 35-34-1-12(a). In Hobson, the defendant waived his alleged error of denial of severance of two counts of child molestation which allegedly were joined solely because they were of the same or similar character, because he did not renew his motion for severance during trial. Hobson, 495 N.E.2d at 744. In the instant case, Hodges made a Motion to Dismiss the counts. He neither objected to the joinder, nor moved to sever the charges for trial, nor moved to continue the trial. Thus, we find no error here.

II

Hodges argues the trial court erred in finding five-year-old T.S., the victim, competent as a witness. He asserts the State failed to overcome the statutory presumption of incompetency and did not show that T.S. understood she was under a compulsion to tell the truth. Children less than ten years old may testify if "it appears that they understand the nature and obligation of an oath." Ind.Code Ann. Sec. 34-1-14-5 (Burns 1986). It must be shown that the child knows the difference between telling the truth and telling a lie, and that the child understands he or she is under a compulsion to tell the truth at trial. Jones v. State (1984), Ind., 464 N.E.2d 1283, 1284. The determination of a child's competency lies within the trial judge's discretion since the trial judge has the opportunity to observe the child's intelligence, demeanor and maturity. Peters v. State (1984), Ind., 470 N.E.2d 708, 710. The court's determination is presumed valid and will be reversed only for a manifest abuse of discretion. Id. at 710; Jones, 464 N.E.2d at 1284.

Hodges concedes a showing that T.S. knew the difference between the truth and a lie, but argues there was no showing that she realized she was under a compulsion to tell the truth. The record clearly shows the requisite inquiries were made of T.S. to...

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