Jarrett v. State, 383
| Decision Date | 17 July 1984 |
| Docket Number | No. 383,383 |
| Citation | 465 N.E.2d 1097 |
| Parties | William I. JARRETT, Jr., Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). S 99. |
| Court | Indiana Supreme Court |
Barry L. Standley, Evansville, for appellant.
Linley E. Pearson, Atty. Gen. of Indiana, Latriealle Wheat, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant, William I. Jarrett, was convicted by a jury of child molesting, a Class B felony, Ind.Code Sec. 35-42-4-3 (Burns 1984 Supp.), and received a twenty-year sentence. The following six issues are raised in this direct appeal:
1. Whether the trial court erred in denying defendant's motion to suppress;
2. Whether the trial court erred in allowing a witness to read the victim's statement into evidence;
3. Whether the trial court erred in allowing evidence of defendant's prior conviction;
4. Whether the trial court erred in denying defendant's motion for a mistrial;
5. Whether the trial court erred in allowing evidence of past sexual misconduct between defendant and a minor; and
6. Whether the trial court erred in refusing defendant's tendered instruction number four.
The facts most favorable to the state show that defendant was charged with forcing the victim, T.E., to perform oral sex. T.E. was a five-year old boy. T.E. and his mother had visited defendant at defendant's trailer. Defendant and T.E. were left alone when the others went to the store, and during this time the incidents resulting in defendant's arrest occurred. T.E. also testified that defendant attempted anal intercourse and that defendant molested him once when they went fishing together.
Defendant contends that the trial court erred in overruling defendant's motion to suppress. Defendant sought to exclude the fact that the victim and one of the victim's friends were found attempting anal intercourse. Defendant believes the rape shield statute precluded the introduction of this evidence. His reliance on this statute is entirely misplaced. The statute in effect at the time of the crime, Ind.Code Sec. 35-1-32.5-1 (Burns 1979 Repl.), shielded the victim of sex crimes from a general inquiry into the history of past sexual activity. Kelly v. State, (1983) Ind., 452 N.E.2d 907. The statute has absolutely no application to the facts of this case, a case involving a five-year old child and an incident that occurred after the crime.
Defendant also argues that the evidence could not be admitted under the res gestae exception to the hearsay rule. A review of the record, however, shows that the trial judge specifically advised the jury not to consider testimony about the incident as true. Thus the evidence was not hearsay, since it was not being introduced for the truth of the matter asserted. It is axiomatic that before a hearsay exception can be applied there must first be hearsay evidence.
In short, the evidence here was properly admitted. It was relevant in that the evidence helped establish the sequence of events leading to the discovery by the victim's parents that he had been molested. There was no error.
Defendant argues that the trial court erred in allowing Officer George Ballard to read the victim's statement into evidence. T.E. made the statement in the presence of Ballard and two others almost four months prior to trial. Defendant contends that there was no showing that T.E. was competent at the time he gave the statements, thus rendering them inadmissible pursuant to Ind.Code Sec. 34-1-14-5 (Burns 1973).
Ind.Code Sec. 34-1-14-5 states that children under ten years of age shall not be competent witnesses, unless they understand the nature an obligation of the oath. The key word is "witnesses." This rule helps assure that the child-witness's testimony in court is based on the truth and not on fantasy. It is a rule pertaining to testimony given in court and not, as here, to statements given out of court. Thus, in Hunter v. State, (1977) 172 Ind.App. 397, 360 N.E.2d 588, the Court of Appeals stated:
Id., 172 Ind.App. at 411-12, 360 N.E.2d at 598. We hold that the trial judge did not err in allowing Ballard to read the victim's statement into evidence. Further, we note that the victim was determined to be competent at trial, and only four months passed between the giving of the statement and the victim's testimony at trial. At trial, T.E. repeated the same basic allegations made in the earlier statement. We find no reversible error.
Defendant next argues that the trial court erred in allowing evidence of defendant's 1974 conviction for assault and battery with intent to gratify sexual desires. Defendant believes the 1974 conviction was too remote to be relevant evidence under the depraved sexual instinct rule. We disagree.
We have previously held that the mere passage of time does not end the relevance of prior sexual crimes. Lawrence v. State, (1984) Ind., 464 N.E.2d 923; Grey v. State, (1980) 273 Ind. 439, 404 N.E.2d 1348. In Grey we held that the fact "substantial time had passed goes to the weight of the evidence but does not render it inadmissible." Id., 273 Ind. at 446, 404 N.E.2d at 1353. Therefore, the fact that the prior conviction in this case was nine years old did not render it inadmissible. The trial court did not err in allowing evidence of this conviction to be admitted.
Defendant contends the trial court erred when it failed to declare a mistrial. Defendant argues that the judge should have declared a mistrial when Officer Ballard testified that defendant had had homosexual relations with one of defendant's nephews several times. The homosexual relations occurred in 1974, and defendant was eventually convicted the same year for assault and battery with intent to gratify sexual desires. Defendant contends that Ballard's testimony was highly prejudicial hearsay. However, the record in this case shows that the jury was admonished by the trial judge to disregard Ballard's remarks. The jury was also told in a final instruction not to consider stricken evidence. The admonishment, coupled with the instruction, was sufficient to dispel any prejudice. In making a determination that an admonishment sufficed to cure the prejudice we will consider the probable impact of the irregularity on the verdict. Coleman v. State, (1982) Ind., 433 N.E.2d 384. Because of the steps taken by the trial judge, we cannot say that the testimony had a significant impact on the jury. We find no error.
Defendant next asserts the trial court erred in allowing evidence that defendant had, prior to the...
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Lehiy v. State
...sexual activity has been permitted in prosecutions for child molesting, Brackens v. State (1985), Ind., 480 N.E.2d 536; Jarrett v. State (1984), Ind., 465 N.E.2d 1097, which prior to 1976 and the addition of IND.CODE Sec. 35-42-4-3 were prosecuted as sodomy or assault. 2 The rationale for t......
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Johnson v. State
...of past misconduct is inadmissible in the trial of a criminal case unless it falls within an exception to such rule. Jarrett v. State (1984), Ind., 465 N.E.2d 1097. The character of the categories of exception has been recently The ultimate test of admissibility is whether or not the eviden......
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Adrian v. People, 87SC254
...of sexual assaults twelve and eighteen years before trial was held to be admissible under a traditional relevancy test.); Jarrett v. State, 465 N.E.2d 1097 (Ind.1984) (Evidence of a sexual assault ten years before trial was admissible and the substantial passage of time does not render the ......
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Lannan v. State
...10 Nor does the rule as it now stands require particular similarity between the prior bad act and the crime charged. See Jarrett v. State (1984), Ind., 465 N.E.2d 1097 (uncharged crime need not be identical, sufficient if same sexual instinct is Then, too, this Court has allowed evidence of......