Howard v. State, No. 79A02-0511-CR-1028 (Ind. App. 8/23/2006), 79A02-0511-CR-1028
| Decision Date | 23 August 2006 |
| Docket Number | No. 79A02-0511-CR-1028,79A02-0511-CR-1028 |
| Parties | JEFFREY L. HOWARD, Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
MICHAEL B. TROEMEL, Lafayette, Indiana, ATTORNEY FOR APPELLANT.
STEVE CARTER, Attorney General of Indiana, RICHARD C. WEBSTER, Deputy Attorney General, Indianapolis, Indiana, ATTORNEYS FOR APPELLEE.
Appellant-Defendant, Jeffrey L. Howard (Howard), appeals his convictions of Count I, sexual misconduct with a minor, as a Class B felony, Ind. Code § 35-42-4-9; Count II, sexual misconduct with a minor, as a Class B felony, I.C. § 35-42-4-9; Count III, furnishing alcoholic beverages to a minor, as a Class C misdemeanor, I.C. § 7.1-5-7-8; Count IV, contributing to the delinquency of a minor, as a Class A misdemeanor, I.C. § 35-46-1-8; Count V, furnishing alcoholic beverages to a minor, as a Class A misdemeanor, I.C. § 7.1-5-7-8; Count VI, contributing to the delinquency of a minor, as a Class A misdemeanor, I.C. § 35-46-1-8; Count VII, sexual misconduct with a minor, as a Class C felony, I.C. § 35-42-4-9(b); and Count VIII, child exploitation, as a Class C felony, I.C. § 35-42-4-4.
We affirm in part, reverse in part, and remand.
Howard raises six issues on appeal, which we consolidate, reorder, and restate as the following five issues:
(1) Whether Howard's two Motions to Suppress were properly denied;
(2) Whether Howard was prevented from presenting a defense;
(3) Whether prosecutorial misconduct was committed during the final argument;
(4) Whether the trial court properly gave Final Instruction Number 20; and
(5) Whether the trial court properly sentenced Howard.
A.Z. was born July 3, 1988. Howard met A.Z. in an Internet chat room around Thanksgiving of 2002. At that time, A.Z. was fourteen years old, albeit holding herself out to be sixteen years old, and lived with her mother in Crawfordsville, Indiana. Howard was thirty-six years old and lived in Elkhart, Indiana.
In February 2003, Howard rented a motel room in Crawfordsville and arranged to meet A.Z. in person. Howard met A.Z. and her boyfriend at a bowling alley. All three proceeded to the motel where only A.Z. and Howard entered the motel room. Inside the motel room Howard gave A.Z. some presents he bought her for Valentine's Day and took pictures of her, after which A.Z. and her boyfriend left.
In March 2003, Howard returned to Crawfordsville. A.Z. and Howard again met at the bowling alley and proceeded to Howard's motel room. This was the last face-to-face contact A.Z. and Howard had for approximately one year, although they continued to communicate via the Internet and occasionally over the phone.
In November 2003, A.Z. moved to Lafayette, Indiana to live with her grandparents. A.Z. continued to communicate with Howard. On or about January 25, 2004, in an email to A.Z., Howard acknowledged that he was aware A.Z. was under sixteen years of age, but still made arrangements to see her in March of 2004.
On March 6, 2004, Howard met A.Z. at a mall in Lafayette and took her to a Red Roof Inn hotel. While at the hotel, Howard proposed to A.Z., gave her a ring and some other gifts, and they performed oral sex on each other.
Later that same evening, A.Z. and her friend, J.O., made plans to go bowling. After they arrived at the bowling alley, Howard arrived, picked up the girls, and took them back to his hotel room, stopping to buy alcohol on the way. Once at the hotel room, Howard set up a video camera, turned it on, and had A.Z. try on clothes he bought for her. While A.Z. tried on the clothes her bare breasts were exposed to the camera. J.O. took pictures of A.Z. sitting on Howard's lap. A.Z. and J.O. were in the hotel room with Howard for a couple hours before he drove them back to the bowling alley.
On July 4, 2004, the day after A.Z. turned sixteen, Howard returned to Lafayette. Only this time he picked A.Z. up at her grandparents' house. They told A.Z.'s grandmother they were going to play miniature golf. Instead, they went to a motel room where Howard gave A.Z. her birthday presents. Later that evening, Howard and A.Z. told her grandmother they were going to see fireworks, only to return to Howard's motel room once again. This time they engaged in sexual intercourse and Howard took a nude photograph of A.Z. The next day, July 5, 2004, Howard emailed the nude photograph to A.Z. A.Z.'s grandmother intercepted the email containing the nude picture, and the instant case commenced shortly thereafter.
On August 23, 2004, the State filed an Information charging Howard with Count I, sexual misconduct with a minor, as a Class B felony, I.C. § 35-42-4-9; Count II, sexual misconduct with a minor, as a Class B felony, I.C. § 35-49-4-9; Count III, sexual misconduct with a minor, as a Class B felony, I.C. § 35-49-4-9; Count IV, furnishing alcoholic beverages to a minor, as a Class C misdemeanor, I.C. § 7.1-5-7-8; Count V, contributing to the delinquency of a minor, as a Class A misdemeanor, I.C. § 35-46-1-8; Count VI, furnishing alcoholic beverages to a minor, as a Class C misdemeanor, I.C. § 7.1-5-7-8; and Count VII, contributing to the delinquency of a minor, as a Class A misdemeanor, I.C. § 35-46-1-8. On March 14 and 17, 2005, the State filed additional Informations charging Howard with Count VIII, sexual misconduct with a minor, as a Class C felony, I.C. § 35-42-4-9(b), and Count IX, child exploitation, as a Class C felony, I.C. § 35-42-4-4, respectively. On April 27, 2005, the State filed a Motion to Dismiss Only Count I. On April 28, 2005, the State filed an amended Information charging Count IX, child exploitation, as a Class C felony, I.C. § 35-42-4-4. Counts II through IX were renumbered as Counts I through VIII.
On January 7, 2005, Howard filed a Motion to Suppress a statement he gave to the police. On March 21, 2005, Howard filed a second Motion to Suppress all evidence derived from a search of his home proscribed by warrant. Both motions were subsequently denied.
On May 4 through May 9, 2005, a jury trial was held. At the close of the evidence, the jury returned a guilty verdict on all Counts. On June 22, 2005, a sentencing hearing was held. For sentencing purposes, the trial court merged Counts III and IV, with Howard to be sentenced under Count IV, and merged Counts V and VI, with Howard to be sentenced under Count VI. At the end of the hearing, the trial court sentenced Howard to the Indiana Department of Correction (DOC) for ten years for Count I; ten years for Count II; six months for Count IV; six months for Count VI; four years for Count VII; and four years for Count VIII, all to run consecutive. Howard's executed portion was assigned as follows: five years for Count I; five years for Count II; two years for Count VII; and two years for count VIII, for a total of fourteen years at the DOC, with fifteen years suspended.
Howard now appeals. Additional facts will be provided as necessary.
Howard first argues the trial court improperly denied his Motion to Suppress evidence obtained as a result of a search warrant, and his Motion to Suppress the statement he made to the police. Specifically, Howard contends that (1) the information used to procure the search warrant for his home was stale and (2) he invoked his right to remain silent and his right to counsel.
The admission or exclusion of evidence is a determination entrusted to the discretion of the trial court. Farris v. State, 818 N.E.2d 63, 67 (Ind. Ct. App. 2005), trans. denied. We will reverse a trial court's decision only for an abuse of discretion. Id. An abuse of discretion occurs when the trial court's action is clearly erroneous and against the logic and effect of the facts and circumstances before it. Id. The improper admission of evidence is harmless error if the conviction is supported by substantial independent evidence of guilt satisfying the reviewing court that there is no substantial likelihood the challenged evidence contributed to the conviction. Beach v. State, 816 N.E.2d 57, 59 (Ind. Ct. App. 2004).
Howard claims that the information used to procure the search warrant for his home was based on stale information and as such did not constitute reasonable belief sufficient to support the granting of a search warrant. The State argues, however, that Howard waived review of this issue by not objecting to the search warrant on grounds of staleness in his Motion to Suppress or at trial. We agree with the State.
The failure to raise certain grounds in a Motion to Suppress and at trial results in waiver of an issue on appeal. Johnson v. State, 829 N.E.2d 44, 49, n.4 (Ind. Ct. App. 2005), trans. denied. In this case, our review of the record reveals that Howard argued in his Motion to Suppress that a nude photograph of A.Z. alone was an insufficient basis for issuance of the search warrant. Howard never argued the search warrant was improperly issued because the information supporting the search warrant was stale. Thus, we find Howard waived this argument for review on the basis of staleness. See id.
Next, Howard argues that the relentless questioning by the police, after Howard invoked his right to remain silent, resulted in a violation of his Miranda rights and thus, should have been suppressed by the trial court. Conversely, the State maintains that Howard spoke voluntarily and never unequivocally asserted his right to remain silent or his right to an attorney. Furthermore, the State argues that any improperly admitted statement was harmless error.
An assertion of Miranda rights must be clear and unequivocal, and in determining whether a person has asserted his or her rights, the defendant's...
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