Krumm v. State

• Decision Date: 22 August 2003
• Docket Number: No. 71A03-0208-CR-259.,71A03-0208-CR-259.
• Citation: 793 N.E.2d 1170
• Parties: Jeffrey KRUMM, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

793 N.E.2d 1170

Jeffrey KRUMM, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 71A03-0208-CR-259.

Court of Appeals of Indiana.

August 22, 2003.

Kenneth R. Martin, Goshen, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Zachary J. Stock, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

SHARPNACK, Judge.

Jeffrey Krumm appeals his convictions and sentences for child molesting as a class A felony¹ and child molesting as a class C felony.² Krumm raises seven issues, which we restate as:

I. Whether the evidence is sufficient to sustain his convictions;

II. Whether the trial court committed fundamental error by admitting testimony that allegedly "vouched" for the victim;

III. Whether the trial court committed fundamental error by allowing the State's expert psychologist to respond to a hypothetical question propounded by the State;

IV. Whether the trial court committed fundamental error by limiting the testimony of witnesses regarding how the victim first made the molestation allegations;

V. Whether the trial court abused its discretion by limiting the testimony of Krumm's expert psychologist;

VI. Whether the trial court abused its discretion in sentencing Krumm; and

VII. Whether Krumm's sentence is inappropriate.³

We affirm.

The relevant facts follow. In 1996, Virginia Smith, her husband, and their three children, J.S., R.S., and K.S., moved to South Bend. R.S. was approximately nine years old at the time. As a result of oxygen deprivation at birth, R.S. is mildly mentally handicapped and has a communications disorder, which disrupts the manner and speed with which she processes sounds.

The Smiths lived near Krumm's home, which he shared with his wife, Jenny, and her two daughters, E.E. and K.K. Virginia met Jenny and asked her if she knew of a reputable babysitter in the neighborhood to babysit for her children for a few hours each day after school. Jenny said that she would be willing to babysit for the children. Jenny babysat for J.S., R.S., and K.S. after school from approximately 3:00 or 3:30 p.m. until 4:45 or 5:00 p.m., on holidays when the children were out of school but Virginia had to work, and on days when the children were slightly sick and could not go to school. The children were also invited to sleep over at the Krumm residence approximately three times. Krumm was occasionally at the residence when Virginia picked up the children. Krumm also watched the children if Jenny had to go to the grocery store or run other errands.

In 1997, the Smiths moved, but the children were still invited to play and sleep over at the Krumm residence. In November 1999, R.S. and her sister, K.S., were invited to spend the night at the Krumm residence. On that night, Virginia learned that Jenny and Krumm had separated and that Jenny was no longer residing at the Krumm residence.

In late December 2000, Jenny called Virginia and informed her that "something may have happened" and advised Virginia to talk to R.S. and K.S. Transcript at 71. When Virginia asked R.S. whether something had happened, R.S. said, "yes." Id. at 72. The State charged Krumm with: (1) Count I, child molesting as a class A felony for "touching his penis to the mouth of [R.S.];" (2) Count II, child molesting as a class C felony for "touching the breasts of [R.S.] and kissing her;" and (3) Count III, attempted child molesting as a class A felony⁴ for "touching his penis to the anus of [R.S.]."⁵ Appellant's Appendix at 9-10.

At the time of the trial, R.S. was fifteen years old and attended special education classes. She was in the eighth grade in school but functioned at the third grade level. R.S. testified that Krumm had "touched parts of [her] body." Id. at 108. R.S. said that Krumm had kissed her breasts underneath her clothes. The kissing was "kind of weird like he was licking." Id. at 110. Krumm also kissed her mouth and placed his tongue inside of her mouth. R.S. also testified that Krumm would "send the girls upstairs" while he and R.S. were in the basement. Id. at 111. Krumm would take off his pants and ask R.S. to remove her pants. Krumm "would stick his [penis] into [her] privacy." Id. at 113. Krumm also touched "[her] butt with his privacy" and it was "painful." Id. at 115. R.S. also testified that on more than one occasion, Krumm placed "his man's privacy in [her] mouth." Id. at 116. This sometimes happened in the bathroom where Krumm would sit on the toilet and R.S. would kneel in front of him. R.S. testified that it tasted "nasty" and "little white stuff" would come out of Krumm's penis. Id. at 117. R.S. also testified that Krumm would make her sit on his penis. Krumm "made [R.S.] promise not to tell anyone" because "they would be mad." Id. at 120. Additionally, R.S. stated that Krumm showed her movies in his bedroom on three or four occasions. In the movies, she saw "a man and a woman ... naked" and they "were doing terrible things, same thing that happened to [her]." Id. at 128.

The jury also heard testimony from R.S.'s psychologist, Dr. Suzanne Courtney, who testified that she performed a "mental status exam" on R.S. and found that R.S. was "firmly based in reality." Id. at 145-146. R.S. was "able to carry on a coherent conversation" and "describe details with accuracy." Id. at 146. Dr. Courtney testified that R.S. has difficulty "articulating," especially when she is anxious. Id. at 148. Further, in evaluating R.S.'s memory, storage, and retrieval process, Dr. Courtney found that R.S. "did have a very balanced ability to do that." Id. at 148. Dr. Courtney also testified, without objection from Krumm, as follows:

And then as we got around to issues about why she was referred to me, they were consistent when I went back and looked at other data and corroborated with either the other stories that I had heard.

Id. at 148. Dr. Courtney found no indications that R.S. had difficulty distinguishing fantasy from reality.

Krumm's defense was that after watching a pornographic videotape, R.S. developed a false memory in which she believed the events in the videotape happened to her. The State questioned Dr. Courtney regarding false memories. Dr. Courtney stated that research in the field of traumatic memories suggests that such memories are less suggestive to manipulation. Further, the State asked Dr. Courtney the following question without objection from Krumm:

Q. Doctor, can you state to a reasonable degree of medical certainty whether it's possible for a child to formulate a false memory based simply upon seeing a pornographic video a few times?

A. I would say that the research would suggest that that's highly unlikely.

Id. at 155.

Angela Scott, a forensic interviewer with the CASIE Center, testified that she tries very hard to allow children to "explain in detail what happened." Id. at 252. Scott testified that "detail is important because there are times when nothing has happened." Id. at 253. According to Scott, R.S. was able to provide details and a description that followed a logical sequence.

Sergeant Eric Rhymer of the South Bend Police Department testified that he investigated R.S.'s allegations. In addition to having R.S. interviewed at the CASIE Center, he testified that he also had J.S. and K.S. interviewed, looking for "[s]omething to corroborate what the victim was saying, additional information." Id. at 262. Sergeant Rhymer also examined the former Krumm residence, especially the basement, to "see if it was conclusive with what [R.S.] had said." Id. at 263.

Dr. Sheridan McCabe, a psychologist, testified as an expert on behalf of the defense. In discussing whether a "cognitively impaired" child was under pressure from her mother to "come up with some kind of sexual history," Dr. McCabe was asked to respond to a hypothetical question as follows:

Q. Is it possible under those circumstances for a person to create either a false memory or a false—for lack of a better word—rendition of events?

A. Well, the way I would perceive it, I would see the situation being one in which the child would come to a belief that the recall was in fact an accurate one. In other words—

Id. at 354-355. The State then objected that Dr. McCabe's response was beyond the scope of the question. In a sidebar conference, the trial court sustained the objection, saying "[i]t's purely hypothetical, purely conjecture. I'm sustaining it, and I'm striking the answer." Id. at 355. After the sidebar conference concluded, the trial court told the jury that the objection was sustained and the answer was stricken. The trial court further instructed the jury that it "was not to consider that because it is spinning out from a very specifically limited hypothetical question and now conjecturing that there may have been all kinds of pressures, et cetera, which there's no evidence in that hypothetical to suggest that." Id. at 355-356.

The jury found Krumm guilty of Count I, child molesting as a class A felony, and Count II, child molesting as a class C felony, but not guilty of Count III, attempted child molesting as a class A felony. In sentencing Krumm, the trial court found the following mitigators: (1) Krumm's minimal criminal record; (2) Krumm's strong work history; (3) Krumm's supportive family; (4) Krumm's work-related disability; and (5) the impact upon Krumm's two children. The trial court found the following aggravators: (1) violation of trust; (2) R.S.'s "very tender young age;" and (3) the fact that R.S. is developmentally disabled. Sentencing Transcript at 24-25. The trial court found the fact that R.S. is developmentally disabled to be the most significant aggravator and found that the aggravators outweighed the mitigators. The trial court sentenced Krumm to forty-eight years in the Indiana Department of Correction for the child molesting as a class A felony conviction and eight years for the child molesting as a class C felony conviction. The trial court...