Hopper v. State
| Decision Date | 17 March 1986 |
| Docket Number | No. 2-985A303,2-985A303 |
| Citation | 489 N.E.2d 1209 |
| Parties | James A. HOPPER, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). 1 |
| Court | Indiana Appellate Court |
William F. Thoms, Jr., Indianapolis, for appellant (defendant below).
Linley E. Pearson, Atty. Gen., Jay Rodia, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee (plaintiff below).
The defendant-appellant James A. Hopper (Hopper) brings this direct appeal from a judgment of guilty of child molesting, a class C felony.
We affirm.
The evidence favorable to the verdict discloses that on January 4, 1984, Christine Stevens, Betty Hopper (Hopper's wife) and Renee Walk left Renee's two children, Bradley and the two and one-half year-old victim, J.W. with Hopper while the women went to a nearby store. Ten minutes later, after returning to the Hopper apartment, the women discovered the front door locked. Peering into the living room through a window, witness Stevens observed Hopper sitting on a couch, the belt of his pants unbuckled, the button unbuttoned, and the zipper pulled down. His pants were pulled open on one side. J.W. was seen lying next to Hopper on the couch. She was clad only in a T-shirt, and her legs were spread apart. When Renee Walk looked through the window, she saw Hopper pick J.W. up in one arm and pull on her underpanties. As he did so he carried J.W. out of the living room toward the back of the apartment.
In the meanwhile, the women had knocked on the door and demanded to be let in. Hopper returned to open the door, without J.W., about one minute after he carried J.W. out of the room.
Once inside the apartment, Walk and Stevens took J.W. into the bathroom. Walk asked her what Hopper had done to her. J.W. answered, "Mommy, he touched my 'pee-pee' " "and my butt with his 'peter'." An examination of J.W. revealed reddening around the opening of her vagina.
Hopper was charged with one count of child molesting by fondling or touching. 2 A jury trial commencing on September 13, 1984, ended in a mistrial after the jury was unable to reach a verdict. After a second trial commencing April 1, 1985, the jury returned a verdict of guilty as charged. Hopper perfected this appeal after denial of his motion to correct errors.
Hopper raises these issues as error:
I. Whether IND.CODE 35-37-4-6 is unconstitutional because it denies an accused the Sixth Amendment right to confront his accusers.
II. Whether the trial court erred by denying Hopper's request for a continuance and in admitting statements under I.C. 35-37-4-6, where the State failed to give proper notice under the statute.
III. Whether permitting the prosecutor to cross-examine Hopper regarding his prior conviction of sodomy was error.
IV. Whether the court erred by refusing to instruct the jury that it could find Hopper guilty of battery, a lesser included offense.
V. Whether the court erred in refusing to read to the jury Hopper's tendered instructions numbered 3, 4, 5, 6, 7, 8 and 10.
VI. Whether there was sufficient evidence to support Hopper's conviction of child molesting.
The trial court allowed witnesses Christine Stevens and Renee Walk to testify to J.W.'s statement pursuant to I.C. 35-37-4-6 (1984 Supp.). Hopper contends that I.C. 35-37-4-6 is unconstitutional because it permits out-of-court statements of a declarant, unavailable to testify at trial, to be admitted into evidence, thus violating Hopper's right to confront his accusers. U.S. Const. amend. 6; Ind. Const. art. 1 Sec. 13. 3
We set out pertinent portions of the statute below:
(b) A statement that:
(1) is made by a child who was under ten (10) years of age at the time of the statement;
(2) concerns an act that is a material element of an offense listed in subsection (a) [including child molesting] that was allegedly committed against the child; and
(3) is not otherwise admissible in evidence under statute or court rule;
is admissible in evidence in a criminal action for an offense listed in subsection (a) if the requirements of subsection (c) are met (c) A statement described in subsection (b) is admissible in evidence in a criminal action listed in subsection (a) if, after notice to the defendant of a hearing and of his right to be present:
(1) the court finds, in a hearing:
(A) conducted outside the presence of the jury; and
(B) attended by the child;
that the time, content, and circumstances of the statement provide sufficient indications of reliability; and
(2) the child;
(A) testifies at the trial; or
(B) is found by the court to be unavailable as a witness because:
(i) a psychiatrist has certified that the child's participation in the trial would be a traumatic experience for the child;
(ii) a physician has certified that the child cannot participate in the trial for medical reasons; or
(iii) the court has determined that the child is incapable of understanding the nature and obligation of an oath.
(d) If a child is unavailable to testify at the trial for a reason listed in subsection (c)(2)(B), a statement may be admitted in evidence under this section only if there is corroborative evidence of the act that was allegedly committed against the child.
When a party challenges the constitutionality of a statute, this court will presume its constitutionality until the challenging party makes a clear showing to the contrary. Hunter v. State, (1977) 172 Ind.App. 397, 360 N.E.2d 588, cert. denied, (1977) 434 U.S. 906, 98 S.Ct. 306, 54 L.Ed.2d 193; Sidle v. Majors, (1976) 264 Ind. 206, 341 N.E.2d 763. Hopper cannot prevail on his claim that I.C. 35-37-4-6 is unconstitutional on its face. The United States Supreme Court examined the relationship between the confrontation clause and the hearsay rule and its exceptions in Ohio v. Roberts, (1980) 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597. In Ohio v. Roberts, the Court held that in order for admission of hearsay statements to comport with the Confrontation Clause, the proponent of the statements must show that the declarant is unavailable to testify at trial, and that the statement bears adequate indicia of reliability. Ohio v. Roberts, 448 U.S. at 66, 100 S.Ct. at 2539, 65 L.Ed.2d at 608.
Under I.C. 35-37-4-6, the hearsay statement of a child victim may be admitted at trial only if the trial court determines that the time, content, and circumstances of the statement provide sufficient indications of reliability, and that the child either testifies at trial or is found by the court to be unavailable to testify under certain circumstances. Furthermore, by demanding corroborative evidence of the act allegedly committed against the child if he is unavailable, the statute goes beyond the requirements of Ohio v. Roberts, supra. Hopper has failed to demonstrate any facial constitutional infirmity in I.C. 35-37-4-6.
Hopper does not dispute that J.W. was unavailable to testify, since the trial court found her incapable of understanding the nature and obligation of an oath. See. I.C. 35-37-4-6(c)(2)(B)(iii). 4 Moreover, J.W.'s statement bore indications of reliability, since reliability may be inferred, without more, where the evidence falls within a "firmly rooted hearsay exception." Ohio v. Roberts, 448 U.S. at 66, 100 S.Ct. at 2539, 65 L.Ed.2d at 608.
The statement of J.W. falls well within the excited utterance, or spontaneous exclamation exception to the traditional hearsay rule. In Choctaw v. State, (1979) 270 Ind. 545, 387 N.E.2d 1305, our supreme court ruled the hearsay statements of a rape victim admissible, where they were admitted through the investigating officer. The victim had given the statements to a police officer within one hour of the incident while still in a state of mental excitement from the ordeal. The court found that the "... circumstances of time and mental condition diminish the probability that the victim deliberated and fabricated this story, and render these utterances trustworthy." Choctaw, 387 N.E.2d at 1308. In contrast, an earlier supreme court case held that statements of the five-year-old victim given to her mother two hours after the incident did not constitute a spontaneous exclamation, where the entire story was drawn out reluctantly upon questioning the victim. Ketcham v. State, (1959) 240 Ind. 107, 162 N.E.2d 247.
In the present case, J.W. made the statement in response to a general question by her mother, within a few minutes of the incident. There was evidence that at the time of the statement, J.W. appeared upset, although she was not crying. We find under the precise circumstances of this case, little likelihood that J.W.'s statement could have been the result of deliberation or fabrication.
In addition, the state presented corroborating evidence of the act in the form of testimony of Walk and Stevens, which is required when the child is unavailable because she is incompetent to testify. See I.C. 35-37-4-6(d).
We hold that admission of J.W.'s hearsay statement was proper under the child hearsay statement and was in accordance with the constitutional prerequisites of Ohio v. Roberts, supra.
Hopper argues that J.W.'s statement should not have been admitted into evidence because the State failed to comply with the notice provisions of I.C. 35-37-4-6(e):
(e) A statement may not be admitted in evidence under this section unless the prosecuting attorney informs the defendant and the defendant's attorney of:
(1) his intention to introduce the statement in evidence; and
(2) the content of the statement;
within a time that will give the defendant a fair opportunity to prepare a response to the statement before the trial.
At a hearing held on the day of Hopper's second trial, the trial court examined J.W. to determine her competency to testify. After ruling that J.W. was incapable of understanding the nature of the oath, the State presented testimony tending to establish the...
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