Marshall v. State, 49A05-9203-CR-89

• Decision Date: 27 October 1992
• Docket Number: No. 49A05-9203-CR-89,49A05-9203-CR-89
• Citation: 602 N.E.2d 144
• Parties: Ronald MARSHALL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 144

602 N.E.2d 144

Ronald MARSHALL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A05-9203-CR-89.

Court of Appeals of Indiana Fifth District.

Oct. 27, 1992.

Transfer Denied Dec. 29, 1992.

Stephen Laudig, Laudig & George, Indianapolis, for appellant-defendant.

Linley E. Pearson, Atty. Gen., Cynthia L. Ploughe, Deputy Atty. Gen., Indianapolis, for appellee-plaintiff.

RUCKER, Judge.

Ronald Marshall appeals his conviction for public indecency, ¹ a Class A misdemeanor. On appeal Marshall raises three issues for our review:

(1) Was the evidence sufficient to support the conviction?

(2) Does the alleged defect in the charging Information amount to fundamental error?

(3) Did Marshall receive ineffective assistance of counsel?

We affirm.

The record before us reveals on August 8, 1991, Rick Dwenger was working as an undercover officer for the Indianapolis Police Department. In the evening hours on that date Officer Dwenger was sitting in his pickup truck parked at City Municipal Park. Marshall drove up in his car and parked next to the Officer's truck. A person later identified as Gale Collett was seated in Marshall's car as a passenger.

Marshall exited his car and walked slowly around the truck. Officer Dwenger exited the truck, and after a few minutes Marshall approached him. The two men proceeded to have a long conversation in which Marshall suggested they get together for sex and gave the undercover officer his telephone number. At one point Marshall left to find a restroom and the Officer and Collett spoke briefly.

Stating that he needed to leave, the Officer entered his truck and drove off. Marshall followed as the Officer drove through a number of parking lots in the park. Officer Dwenger parked his truck in a parking lot next to a wooded area. Marshall parked his car immediately in front of the truck, got out of his car, and walked alone into the woods. Officer Dwenger got out of his truck and found Marshall by following the sound of Marshall's whistling. Marshall told the undercover officer to relax, and then requested the Officer to expose his penis. Officer Dwenger declined, and Marshall began tapping the Officer's thigh with the back of his hand, working his hand upward until he was tapping the Officer's genital area. Marshall repeated his request that Officer Dwenger expose his penis and the Officer again declined. The undercover officer left the wooded area and shortly thereafter arrested Marshall.

The State charged Marshall with the offense of public indecency, alleging that he had fondled the Officer in a public place. Marshall was tried to the bench without the intervention of a jury.

Additional facts will be recited below where relevant.

I.

Marshall argues there was insufficient evidence to support his conviction because the State failed to prove he fondled the Officer. Marshall contends that the statutory use of the term "fondling" refers to the notion of a "caress" and asserts that his relatively impersonal act of "tapping" Officer Dwenger was not an act of fondling within the generally accepted meaning of that term.

In reviewing a claim of sufficiency of the evidence our standard of review is well-settled. We will neither reweigh the evidence nor judge the credibility of witnesses. We examine only the evidence most favorable to the State along with all reasonable inferences to be drawn therefrom and if there is substantial evidence of probative value to support the conviction, it will not be set aside. Litel v. State (1988), Ind., 527 N.E.2d 1114.

Indiana Code Sec. 35-45-4-1(a)(4) provides that:

PUBLIC INDECENCY--INDECENT EXPOSURE--(a) A person who knowingly or intentionally, in a public place:

* * * * * *

(4) Fondles the genitals of himself or another person; commits public indecency a class A misdemeanor.

The term fondle has not been defined by the legislature. In such circumstances penal statutes are to be strictly construed against the State and should be held to prohibit only that conduct which is clearly within the spirit and letter of the statutory language. Lasko v. State (1980), Ind.App., 409 N.E.2d 1124, 1127. However, criminal statutes are not to be narrowed to the point that they exclude cases which the language fairly covers. Barger v. State (1992), Ind., 587 N.E.2d 1304, reh. denied.

The word fondle is defined as: "to handle tenderly, or lingeringly; treat caressingly: caress." Webster's Ninth New International Dictionary 480 (1984). In the case before us the trier of fact was entitled to determine that Marshall's conduct in tapping Dwenger's thigh and working his way upward until he was tapping Dwenger's genital area was "handling" Dwenger "lingeringly" and thereby constituted an act of fondling within the meaning of I.C. Sec. 35-45-4-1(a)(4). Marshall's conduct is fairly covered by the language of the statute and the evidence was sufficient to sustain the conviction.

II.

For the first time on appeal, Marshall asserts that the State's charging Information failed to present an adequate statement of the criminal acts which he was alleged to have committed. Marshall argues the Information contains no specific facts but merely recites the elements of the statute with the inclusion of the name of the complaining witness. He claims that the offense with which he was charged is not described with sufficient particularity to permit a defense of double jeopardy in the event of a subsequent prosecution. See Little v. State (1986), Ind., 501 N.E.2d 447. Marshall concludes that the alleged Information fails to charge a crime at all and the defect warrants reversal.

Any challenge to the adequacy of an information must be made by motion to dismiss prior to arraignment. Otherwise, any error in that regard is waived. Stwalley v. State (1989), Ind., 534 N.E.2d 229, reh. denied. Marshall did not challenge the Information at the trial court level but seeks to elude waiver on appeal by asserting fundamental error.

In order to be fundamental, error must be so prejudicial to the rights of a defendant that he could not have received a fair trial. Howey v. State (1990), Ind., 557 N.E.2d 1326. Waiver may be so avoided only if the mistake constitutes a clearly blatant violation of basic and elementary principles and the resulting harm or potential for harm must be substantial. Grey v. State (1990), Ind., 553 N.E.2d 1196, reh. denied; Perry v. State (1984), Ind., 471 N.E.2d 270.

In this case the form document which the State used as an information is set forth as follows:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Record at 9.

By failing to merely delete the inapplicable portions of this form Information, the State appears to have charged the defendant with all four varieties of public indecency. ² It is a fundamental tenet of pleading criminal causes that the Information must set forth "the nature and elements of the offense charged in plain and concise language...." Ind.Code Sec. 35-34-1-2(a)(4). As our supreme court observed over three decades ago:

[I]t is the well established rule in this State that the particular crime with which the defendant is charged must be shown with such reasonable certainty, by express averments as will enable the court and jury to distinctly understand what is to be tried and determined, and to fully inform the defendant of the particular charge which he is required to meet. The averments must be so clear and distinct that there may be no difficulty in determining what evidence is admissible thereunder.

Taylor v. State (1957), 236 Ind. 415, 418, 140 N.E.2d 104, 106. The observations in that case are no less applicable today. See Little, supra; Green v. State (1991), Ind.App., 575 N.E.2d 296, trans. denied; Kerlin v. State (1991), Ind.App., 573 N.E.2d 445, trans. denied.

The Information in this case is bad for duplicity and could not have withstood attack by a timely motion to dismiss. See Watt v. State (1968), 249 Ind. 674, 234 N.E.2d 471. However, we cannot say the defect in the Information was so prejudicial to the rights of Marshall that he did not receive a fair trial. The Information alleges that on a specified date, at a particular location the defendant fondled the genitals of Rick Dwenger. Marshall has failed to demonstrate how or in what manner his defense was impeded by the inadequacy of the Information. Nor does Marshall contend that he was unable to meet the evidence presented against him at trial. Under the circumstances, the harm to Marshall caused by the defective Information was not substantial. We find no fundamental error here.

III.

Marshall next contends his conviction should be reversed because he received ineffective assistance of counsel. Marshall points out his trial counsel failed: (1) to object to the language of the Information, (2) to secure the presence of Gale Collett at trial, (3) to raise the issue of entrapment and (4) to object to hearsay testimony. According to Marshall, his counsel's performance in each instance, and when considered cumulatively, constitutes legal representation falling below an objective standard of reasonableness and resulting in prejudice depriving him of a fair trial. Lawrence v. State (1984), Ind., 464 N.E.2d 1291; Strickland v. Washington (1984) 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674.

In our review of this issue, we initially presume that counsel's representation was within the wide range of reasonable professional assistance. Dillon v. State (1986), Ind., 492 N.E.2d 661. On appeal of a criminal conviction the defendant has the burden to rebut the presumption of competence with strong and convincing evidence. Burr v. State (1986), Ind., 492 N.E.2d 306. In order to prevail on a claim of ineffective assistance of counsel, Marshall must demonstrate: 1) his counsel's representation was deficient and 2) the deficient performance so prejudiced Marshall that he was deprived of a fair trial. Steele v. State (1989), Ind., 536 N.E.2d 292. We...