Linder v. State

Decision Date02 December 1983
Docket NumberNo. 483S132,483S132
PartiesJames Robert LINDER, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

Richard Walker, Anderson, for appellant.

Linley E. Pearson, Atty. Gen., Robert K. Johnson, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Chief Justice.

Appellant was charged with two counts of child molestation. The first count alleged he engaged in sexual intercourse with a child under twelve. The second count charged he engaged in deviate sexual conduct with a child under the age of twelve. He was convicted on Count II and sentenced to twenty (20) years of imprisonment.

The victim, C.W., an eight year old girl, lived with her mother and the mother's boyfriend, the appellant. Over the course of three years the appellant engaged in deviant sexual conduct with the victim. The child had informed her mother and aunt that the appellant had licked her in the genital area. Later she informed her maternal grandmother of the incident and the grandmother and mother sought help. The victim and her mother began to visit a mental health center. Occasionally the appellant would accompany the mother and child on these visits and was interviewed by the staff of the center.

In addition to those on the staff of the center, the victim was interviewed by various medical and police officials. She told these officials about the incidents which had occurred between her and the appellant. She told a deputy the appellant had licked her and "put his wiener in her." She told a doctor the appellant had made her bleed in the vaginal area and that he had licked her for three years. A doctor's examination revealed her hymen was not intact but there was no scarring of the vaginal area.

Appellant's first issue is that the court erred in not granting appellant's Motion for a Change of Venue. The same motion was renewed shortly before trial and was denied without a hearing. Following the selection of the jury the trial was recessed for the weekend. Over that weekend two stories appeared in the local paper which made reference to the prior record of the appellant including his prior arrest for the same charges he faced. On Monday the appellant again sought a change of venue. The judge polled the jurors individually concerning whether or not they had seen the articles. He also asked if any had discussed the article with someone who had read it. Lastly, he asked each juror if anything had occurred over the weekend to cause them not to be a fair and impartial juror. The judge ascertained the story had not influenced the jurors and denied the motion. The appellant again renewed the motion and requested a hearing on the matter. This was also denied. Appellant now contends he was entitled to a hearing on his motion and that the motion should have been granted.

The granting of a motion for a change of venue is governed by Ind.R.Cr.P. 12 and is reviewable only for abuse of discretion. Appellant argues a hearing should have been held on the second Motion for Change of Venue. He cites Hanrahan v. State, (1968) 251 Ind. 325, 241 N.E.2d 143 to support this position. Hanrahan states it would be an abuse of discretion to deny a petition for change of venue without affording the defendant a hearing or an opportunity to present evidence in his behalf. The purpose of such a hearing is to allow the defendant to demonstrate what prejudice has occurred. Appellant was not given a formal second hearing. However, he certainly was given an opportunity to present the articles to the attention of the judge. In addition the judge did take action to determine if the appellant had, in fact, been harmed by the articles and determined no harm was apparent. We see no error in this process. The appellant's interests were protected by the actions of the trial judge.

In addition the Court notes the failure of the appellant to provide an adequate record for the use of the Court. The record provided contains no copies of the alleged prejudicial articles or any other materials to show the prejudice of the jury. The appellant has the duty to provide evidence to support his contentions. Smith v. State, (1981) Ind., 422 N.E.2d 1179. The only evidence is the transcript which reveals the trial judge took appropriate actions to protect the interest of the appellant.

Appellant's second issue is that the charging information was unconstitutionally vague and did not define the crime with sufficient certainty. The portion of the information in question stated, "James Robert Linder did perform deviate sexual conduct, to-wit cunnilingus with C.W. who was then under the age of twelve." The appellant sought at trial to have the charge dismissed for failure to apprise the appellant of the charge. He maintained the term cunnilingus was vague and failed to provide notice to the appellant of the charge. The trial court denied appellant's motion but did provide the jury with a definition of deviate sexual conduct. The definition of deviate sexual conduct provided would include the common meaning of the term in question. In Estes v. State, (1964) 244 Ind. 691, 195 N.E.2d 471, this Court found the phrase, "the abominable and detestable crime against nature with a boy" was not unconstitutionally vague. We hold the term cunnilingus is not vague. The trial judge committed no error in denying the Motion to Dismiss.

Appellant's third issue concerns testimony given by Bonnie Smith, an employee of the mental health center. Appellant had talked with Smith on a few occasions at the center in conjunction with Smith's work with the victim. Prior to her testimony the judge ruled I.C. Sec. 31-6-11-18 [Burns 1980 Repl.] abrogated any privilege of communication between the medical practitioner and the client in cases dealing with child abuse. During her testimony Smith sought to refresh her memory by looking at her own notes and records from the center. The court allowed her to do so and the appellant did not object to this activity. On appeal he asserts Smith's view of the records amounted to the release of the records and such release is governed by the following statute:

"31-6-11-18. Reports, photographs and information confidential--Persons entitled to access.--(a) Reports made under this chapter, and any other information obtained, reports written or photographs taken concerning such reports in the possession of the department, the county department of public welfare, or the local child protection service are confidential and shall be made available only to those persons authorized by this chapter and to:

* * *

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"(8) A court, upon its finding that access to the records may be necessary for determination of an issue before the court, but access is limited to in camera inspection, unless the court determines that public disclosure of the information contained in the records is necessary for the resolution of an issue then pending before it; ...." [IC 31-6-11-18, as added by Acts 1979, P.L. 276, Sec. 55.]

Appellant argues the judge made neither of the two required findings pursuant to the statute to release these records. We find the review of the records by Smith to refresh her memory is a distinguishable act from the introduction of such records into evidence. The transcript does not reveal any attempt to introduce these records in whole or in part into the evidence of this trial. The review of the records by an employee to refresh her memory does not require a finding by the judge as to the propriety of the release of medical records pursuant to I.C. Sec. 31-6-11-18.

Appellant's fourth issue concerns a limited waiver of immunity granted to the victim's mother. The mother agreed to testify against the appellant if the State would agree not to use that testimony against her in her pending child neglect trial. The agreement was entered into evidence and the text of the agreement was read to the jury.

After appellant's trial the mother sought to have the charges pending against her dismissed. She contended she thought she had been granted a full immunity in exchange for her testimony. The State objected to the motion. However, the judge granted the motion. In ruling the judge said, "Without regard to the actual offer of the State it must now be bound by the representation which is reasonably interpreted by the defendant as an offer of dismissal and justice requires the pending charge be dismissed." The appellant now argues the court's granting of the Motion to Dismiss is tantamount to the existence of a full waiver of immunity. Further he maintains the State had a duty to place this full immunity waiver before the court. Failure to present the real agreement, he contends, misled the jury and prevented appellant's counsel from adequately questioning the witness.

We find this argument without merit. The State did not hide the existence of the agreement as it knew the agreement to be. The fact a judge later dismissed the action over the objection of the State does not change the nature of the...

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6 cases
  • Hickman v. State
    • United States
    • Indiana Appellate Court
    • 27 Abril 1989
    ...actually conduct a hearing, whether or not such opposing affidavits are filed. In this, the Wilson court is in error. See Linder v. State (1983) Ind., 456 N.E.2d 400. Otte v. Tessman (1981) Ind., 426 N.E.2d 660, relied upon by the court in Wilson, does not require a hearing. See Rumfelt v. ......
  • Wilson v. State
    • United States
    • Indiana Appellate Court
    • 26 Diciembre 1984
    ...has been added since Stacks was decided, and we thus find that case inapplicable here. The other conflicting case is Linder v. State (1983), Ind., 456 N.E.2d 400. In that case, the defendant filed a second motion for change of venue on the basis of the provision for newly discovered grounds......
  • Elsten v. State
    • United States
    • Indiana Supreme Court
    • 18 Agosto 1998
    ...of venue motion will be reversed only for an abuse of discretion. Davidson v. State, 580 N.E.2d 238, 244 (Ind.1991) (citing Linder v. State, 456 N.E.2d 400 (Ind.1983)). Showing potential juror exposure to press coverage is not enough. Barnes v. State, 693 N.E.2d 520, 524 (Ind.1998) (citing ......
  • Davidson v. State
    • United States
    • Indiana Supreme Court
    • 29 Octubre 1991
    ...his motion. The trial court's decision on a motion for change of venue is reviewable only for an abuse of discretion. Linder v. State (1983), Ind., 456 N.E.2d 400. The mere possibility of prejudice is not enough to gain a change of venue; the defendant must show that jurors were unable to s......
  • Request a trial to view additional results

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