Maxwell v. State
| Decision Date | 17 January 2012 |
| Docket Number | No. 49A04-1101-CR-6,49A04-1101-CR-6 |
| Parties | JEROME MAXWELL, Appellant, v. STATE OF INDIANA, Appellee. |
| Court | Indiana Appellate Court |
Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT:
VALERIE K. BOOTS
GREGORY F. ZOELLER
Attorney General of Indiana
JOBY D. JERRELLS
Deputy Attorney General
Indianapolis, Indiana
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Lisa Borges, Judge
MEMORANDUM DECISION - NOT FOR PUBLICATIONMATHIAS, Judge Jerome Maxwell was convicted in Marion Superior Court of one count of Class A felony child molesting and two counts of Class C felony child molesting and was sentenced to an aggregate term of forty years incarceration. Maxwell appeals and presents numerous issues, which we reorder, renumber, and restate as the following eight:
We affirm.
Facts and Procedural History
At the time relevant to this appeal, T.H. ("Mother") and Ra.H. ("Father") were married and had three children: the seven-year-old victim in this case, R.H., her three-year-old sister C.W., and a younger brother. In 2009, Mother started school to study nursing. When she first started school, Mother's sister watched the children whileMother was at school. But in March of 2009, Maxwell, who is Mother's uncle, began to watch the children both at their home and at his house.
On one occasion while Maxwell watched the children at Mother's home, Maxwell took R.H. into her brother's room and attempted to take off her pants. He told her, "Don't worry, nothing's gonna happen," and "Don't tell anyone, it's private." Tr. pp. 49, 51. Maxwell then pulled R.H.'s underwear down to her ankles and touched her bottom. On another occasion, Maxwell touched R.H. on the outside of her clothes in her genital area. Maxwell then touched R.H.'s vaginal area, moving his fingers around the inside of her labia, which felt "really scary" to her. Id. at 55-56.
On another occasion, Maxwell touched R.H. with his hands on her bottom. She described this as being "a little bit inside" her bottom. Tr. pp. 58-60. Maxwell instructed R.H. to not tell anyone about what he had done to her, and R.H. was afraid that she would be in trouble if she told anyone. R.H. later explained that Maxwell touched her every time he watched her.
On September 17, 2009, Father was helping C.W. use the restroom at a department store when C.W. told him something that made him concerned. After they left the store, he asked R.H. what happened when Maxwell babysat her. R.H. initially stated that she watched television and played, but upon further questioning she began to cry. She then told her father that Maxwell touched her "potty." Tr. p. 219. Father called the family pediatrician and then took R.H. to the hospital, where she was examined by a sexual assault examination nurse. The examination results were normal, which is not unusual of children who have been sexually molested.
On September 22, 2009, R.H. was interviewed at the Child Advocacy Center by Jill Carr ("Carr"), a forensic interviewer for Child Protective Services. Indianapolis Metropolitan Police Detective Shawn Looper ("Detective Looper") then began to investigate R.H.'s allegations. Detective Looper interrogated Maxwell, who denied the allegations. On October 14, 2009, the State charged Maxwell with two counts of Class A felony child molesting and two counts of Class C felony child molesting, all alleging that R.H. was the victim.
While in jail, Maxwell made several telephone calls that were recorded. Detective Looper reviewed the calls Maxwell made in jail and took notes about the substance of the calls. However, Detective Looper was later unable to retrieve the actual recorded calls because the jail changed the call logging system. According to Detective Looper's notes, Maxwell made several incriminating statements to his wife during the calls. Specifically, Maxwell told her that Tr. p. 343. He also told his wife, Id. Maxwell, demonstrating a serious misunderstanding of the law, further told his wife, Id. at 344. Maxwell later made another telephone call in which he crudely stated, Id. at 345.
Prior to trial, the trial court granted, in part, a motion in limine filed by Maxwell, prohibiting any reference to any uncharged past sexual misconduct by Maxwell and reference to Maxwell touching C.W. in a sexual manner. A jury trial commenced onNovember 15, 2010. During trial, Maxwell twice moved for a mistrial based on alleged violations of the motion in limine, but the trial court denied these motions. On November 16, the jury acquitted Maxwell on one count of Class A felony child molesting but found Maxwell guilty on the remaining count of Class A felony child molesting and two counts of Class C felony child molesting. On December 17, 2010, the trial court sentenced Maxwell to forty years on the Class A felony conviction and concurrent terms of four years on each Class C felony conviction, for an aggregate term of forty years. Maxwell now appeals.
I. Calling Victim's Sister as a Witness
Maxwell claims that the trial court erred in permitting the State to call as a witness R.H.'s younger sister, C.W. Although a child under the age of ten was formerly presumed to be incompetent, the statute setting forth that presumption was repealed in 1990. See Newsome v. State, 686 N.E.2d 868, 871 (Ind. Ct. App. 1997). Now, Indiana Evidence Rule 601 provides that "[e]very person is competent to be a witness except as otherwise provided in these rules or by [statute.]" When a child is called to testify at trial, the trial court has the discretion to determine if a child witness is competent based on the court's observation of the child's demeanor and responses to questions posed by counsel and the court. Haycraft v. State, 760 N.E.2d 203, 209 (Ind. Ct. App. 2001), trans. denied.
Here, Maxwell does not claim that the trial court erred in permitting C.W. to testify. In fact, the trial court did not permit C.W. to testify because the child was too young and frightened to answer the court's preliminary questions to determine hercompetence. Thus, Maxwell argues that the trial court erred in permitting the State to call C.W. as a witness at all. We are unable to agree.
Certainly, it would have been more prudent for the trial court to have excused the jury before C.W. took the stand. That way, the parties and the court could have better assessed the young child's competence to testify. Instead, the jury was exposed to a child too young and frightened to even speak in court. That having been said, however, the fact remains that C.W. provided no testimony. We are unable to say that simply allowing the jury to see C.W. on the stand was error.
Moreover, the time C.W. spent on the witness stand was brief. The trial court asked the child what her name was, and although she was unable to give a verbal response, C.W. did nod her head. When the State attempted to ask even the most basic questions of C.W., however, she was unable to give any response. Thereafter, the trial court found that "[C.W.] is by virtue of her age and apparent emotional state . . . unable to communicate with us out loud here today[.]" Tr. p. 41. The State then proceeded to its next witness. Again, the better practice would have been to determine C.W.'s ability to testify outside the presence of the jury. But we are unable to say that the brief time C.W. spent on the witness stand in the presence of the jury was reversible error when her time on the stand was brief and when she was unable to provide any testimony or other evidence.
II. Motions for Mistrial
Maxwell also claims that he was denied a fair trial because the jury was exposed to evidence indicating that Maxwell had molested R.H.'s younger sister C.W. in additionto molesting R.H. Maxwell claims that the trial court abused its discretion in denying his motions for mistrial which were made when such evidence was placed before the jury. We have repeatedly explained that "[a] mistrial is an extreme remedy warranted only when no other curative measure will rectify the situation." Henson v. State, 790 N.E.2d 524, 535 (Ind. Ct. App. 2003) (quoting Kirby v. State, 774 N.E.2d 523, 533-34 (Ind. Ct. App. 2002)). The decision to grant or deny a mistrial is within the trial court's discretion, and we will reverse only for an abuse of that discretion. Id. An abuse of discretion occurs if the trial court's decision is clearly against the logic and effect of the facts and circumstances before the trial court. Id. On appeal, we accord the trial court's decision great deference, as it is in the best position to gauge the...
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