Hoglund v. State
| Decision Date | 19 May 2011 |
| Docket Number | No. 90A02–1005–CR–591.,90A02–1005–CR–591. |
| Citation | 945 N.E.2d 166 |
| Parties | Keith HOGLUND, Appellant/Defendant,v.STATE of Indiana, Appellee/Plaintiff. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
John Pinnow, Special Assistant to the State Public Defender, Greenwood, IN, Attorney for Appellant.Gregory F. Zoeller, Attorney General of Indiana, Karl M. Scharnberg, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Appellant/Defendant Keith Hoglund appeals from his conviction of and sentence for Class A felony Child Molesting.1 Hoglund contends that the trial court abused its discretion in admitting testimony regarding whether the victim was falsifying or exaggerating stories of Hoglund's molestation of her, whether the trial court abused its discretion in sentencing him, and whether his fifty-year sentence is inappropriately harsh. We affirm.
In 1997, Hoglund met Teresa Malott in a Fort Wayne nightclub, and the couple married later that year. On February 20, 1998, A.H., the couple's first daughter was born. Beginning when A.H. was four or five years old, Hoglund caused her to fellate him. The fellatio occurred until after A.H.'s seventh birthday; A.H. testified that it occurred two to three times a week. Hoglund would rub flavored substances onto his penis and occasionally ejaculate into A.H.'s mouth. Hoglund also showed A.H. pornographic movies depicting oral sex, told her that her mother viewed her with “disgust” and cared more about her younger sister and half-brother than her, promised to give her money and toys, and told her that she would be “covered in black and blue” and that he would go to jail if she told anyone about their activities. Tr. pp. 34, 78. After A.H. told Hoglund that she no longer wanted to fellate him, she asked him if he would ever force her younger sister to fellate him, and he responded, “I don't know, maybe.” Tr. p. 30.
On May 4, 2006, the State charged Hoglund with two counts of Class A felony child molesting. At trial, pediatrician Carol Butler, mental health counselor Christine Ottaviano Shestak, and clinical psychologist Amanda Mayle, who met with A.H. in March of 2006, January of 2007, and July and August of 2009, respectively, all testified. During Dr. Butler's testimony, the following exchange occurred:
[Prosecutor]: Dr. Butler, in the time that you dealt with [A.H.] and interviewed her and examined her, based upon that experience and your training and experience as a doctor and pediatrician, do you believe that [A.H.] was, is prone to exaggeration or fantasiz[ing] in sexual matters?
[Hoglund's objection overruled]
[Dr. Butler]: When it comes to sexual, speaking about sexual matters, I may answer this actually in more in generality than in specific in a sense that an eight year old is not going to come, I don't believe an eight year old would come into a physician's office to speak about sexual fantasies or made up stories. For almost anybody speaking about sexual issues even as an adult in a physician's office is an uncomfortable position and for an eight year old to come in and speak about that in my opinion is not usually a fantasy or a story. To be seven or eight and to have this knowledge is not usual. So I believe that what [A.H.] told me was the truth because of her age and because people don't—
[Hoglund's Counsel]: Again, I'm going to object as far as, a running objection Your Honor as far as what she is saying is the truth. That's the decision for the jury to make, not, or the fact finder, not for her to decide, this is not an opinion that she has the ability to make at this point as to whether or not a young witness on the stand is telling the truth. Again, a continuing objection as to any opinion as to whether or not she is telling the truth. Clearly inappropriate in the situation, that's for the fact finder to decide, not for this lady to make an opinion.
[Prosecutor]: I would agree Your Honor—
[Hoglund's Counsel]: It's a legal conclusion.
[Dr. Butler]: Okay.
[Prosecutor]: Do you believe that [A.H.], based on your experience with her, is prone, was she prone to exaggerate or fantasize? That would be the question I guess.
[Dr. Butler]: In regards to what she told me, no. COURT: Ladies and gentlemen of the jury, I'm going to instruct you that her comment regarding her opinion whether [A.H.] was truthful or not is stricken from the record and you should treat it as if it had never been said.
During Shestak's testimony, the following exchange occurred:
[Prosecutor]: Ms. Shestak, based on your contacts with the victim, did you perceive any indication that she may have fabricated the story about her abuse out of some need?
[Hoglund's objection overruled]
[Shestak]: Her statements were congruent with her experience and I did not see anything that indicated that she had any need to tell this story.
Also during Shestak's testimony, the following exchange occurred:
[Prosecutor]: Ms. Shestak, in your interviews and meeting with the victim, [A.H.], do you believe that she is prone to exaggerate or fantasize in sexual matters?
[Shestak]: My clinical impression of this child was that there is a great deal of shame about what had happened to her and a great deal of anxiety about talking about it, about what would happen to her, what would happen to her dad if she talked and I did not feel there was any great exaggeration.
During Dr. Mayle's testimony, the following exchange occurred:
[Prosecutor]: Dr. Mayle, do you perceive any indication that [A.H.] may have fabricated this story of her abuse out of some need?
[Dr. Mayle]: No.
[Prosecutor]: Have you worked with other sexually abused children?
[Dr. Mayle]: Yes.
[Prosecutor]: Do you have any special training, experience or education in that area?
[Dr. Mayle]: Yes.
[Prosecutor]: Did you learn anything about [A.H.] which you believe would be inconsistent with a victim being a victim of child abuse?
[Dr. Mayle]: No.
The jury found Hoglund guilty as charged. On May 17, 2010, the trial court sentenced Hoglund to fifty years of incarceration for one count of child molesting.2 The trial court found Hoglund's violation of a position of trust and that A.H. was less than twelve years old when the molestation occurred to be aggravating circumstances, Hoglund's lack of criminal convictions to be a mitigating circumstance, and that the aggravating circumstances “significantly” outweighed the mitigating. Sentencing Tr. p. 15.
The admissibility of evidence is within the sound discretion of the trial court. Curley v. State, 777 N.E.2d 58, 60 (Ind.Ct.App.2002), trans denied. We will reverse a trial court's decision on the admissibility of evidence only upon a showing of an abuse of that discretion. Id. An abuse of discretion may occur if the trial court's decision is clearly against the logic and effect of the facts and circumstances before the court, or if the court has misinterpreted the law. Id. The Court of Appeals may affirm the trial court's ruling if it is sustainable on any legal basis in the record, even though it was not the reason enunciated by the trial court. Moore v. State, 839 N.E.2d 178, 182 (Ind.Ct.App.2005), trans. denied. We do not reweigh the evidence, and consider the evidence most favorable to the trial court's ruling. Hirshey v. State, 852 N.E.2d 1008, 1012 (Ind.Ct.App.2006), trans. denied.
Hoglund contends that the admission regarding whether A.H. was fabricating her story of child abuse was an abuse of discretion requiring reversal.
No witness, whether lay or expert, is competent to testify that another witness is or is not telling the truth. Shepherd v. State (1989), Ind., 538 N.E.2d 242. In the context of child molesting, however, Court has recognized that where children are called upon to describe sexual conduct, a special problem exists in assessing credibility since children often use unusual words to describe sexual organs and their function and since they may be more susceptible to influence. Therefore, testimony is allowed which permits
some accrediting of the child witness in the form of opinions from parents, teachers, and others having adequate experience with the child, that the child is not prone to exaggerate or fantasize about sexual matters. Such opinions ... facilitate an original credibility assessment of the child by the trier of fact....
Lawrence [ v. State ], 464 N.E.2d [923,] 925 [ (Ind.1984) ]. These adult witnesses are allowed to state an opinion as to the child's general competence and ability to understand the subject, Settle v. State (1988), Ind., 526 N.E.2d 974, but are prohibited from making direct assertions as to their belief in the child's testimony, as such vouching invades the province of the jury to determine what weight to place on the child's testimony. Head v. State (1988), Ind., 519 N.E.2d 151.
Stewart v. State, 555 N.E.2d 121, 125 (Ind.1990), abrogated on other grounds by Lannan v. State, 600 N.E.2d 1334 (Ind.1992).
In this case, the three witnesses who testified regarding whether A.H. had a tendency to fabricate were a pediatrician, a mental health counselor, and a clinical psychologist. A parent or teacher, both of whom would have countless hours of contact with a child is distinguishable from a therapist or counselor, who may meet with a child for a few hours or less. In addition to cases involving parents and teachers, the case law recognizes that a therapist, social worker, psychologist, or even a police officer...
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