McNeely v. State

Decision Date03 November 1988
Docket NumberNo. 74A01-8802-CR-61,74A01-8802-CR-61
Citation529 N.E.2d 1317
PartiesRussell A. McNEELY, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
CourtIndiana Appellate Court

Jeffery L. Lantz, Evansville, for defendant-appellant.

Linley E. Pearson, Atty. Gen., Gary Damon Secrest, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for plaintiff-appellee.

NEAL, Judge.

STATEMENT OF THE CASE

Defendant-appellant, Russell A. McNeely (McNeely), appeals his convictions by the Spencer Circuit Court of two counts of child molesting, both Class C felonies under IND.CODE 35-42-4-3.

We affirm.

STATEMENT OF THE FACTS

On September 19, 1986, an Information was filed in the Spencer Circuit Court charging McNeely with two counts of child molesting. Count I of the Information alleged McNeely had engaged in sexual intercourse with B.F., his 14 year old stepdaughter, on or about July 31, 1986. Count II alleged McNeely had intercourse with B.F. on or about August 14, 1986. Following a jury trial, McNeely was convicted and sentenced to eight years on each count to be served consecutively. He subsequently instituted this appeal.

ISSUES

McNeely raises several issues for our review which we restate as follows:

I. Whether the trial court erred in its instructions to the jury regarding the alibi defense.

II. Whether the trial court erred in giving certain instructions containing the phrase "depraved sexual instinct."

III. Whether the trial court erred in refusing McNeely's tendered instruction regarding the use of prior similar crimes evidence.

IV. Whether the trial court erred in giving instructions regarding the presumption of innocence and the State's burden of proof.

V. Whether the trial court erred in denying McNeely's motion for a continuance.

VI. Whether the trial court erred in refusing to permit McNeely to cross-examine the victim regarding allegations of her prior drug use.

VII. Whether there is sufficient evidence to support the convictions.

VIII. Whether McNeely's sentence is manifestly unreasonable.

DISCUSSION AND DECISION

ISSUE I: Alibi Instruction

McNeely first contends the trial court erred in instructing the jury with regard to his alibi defense. The Information filed against McNeely alleged that the molestations occurred "on or about the 31 day of July, 1986," and "on or about the 14 day of August, 1986." Record at 27. Pursuant to IND.CODE 35-36-4-1 McNeely filed a notice of alibi defense indicating his whereabouts on an hourly basis throughout the days of July 31 and August 14. The State did not respond to the alibi notice.

McNeely claims the trial court erred in refusing to give his tendered Final Instructions Nos. 2 and 3, and giving the State's tendered Final Instruction No. 3 instead. With respect to the alibi defense, the jury was instructed as follows:

The State of Indiana has charged the Defendant with commission of the offenses of child molesting and has stated the time of the offenses as follows: "On or about July 31, 1986" and "On or about August 14, 1986." The Defendant has filed the defense of alibi, in which the Defendant alleges that he was not at the place of the alleged offenses on July 31, 1986 and on August 14, 1986.

The State of Indiana is not required to specify the exact date or the exact time of day of the offenses if the evidence available to the State does not permit such a statement of specific time or specific date. If you find that the evidence available to the State of Indiana does not permit the State to specify the exact date or the exact time, and if you find beyond a reasonable doubt that the Defendant committed the offense or the offenses within reasonable proximity to the date or dates alleged, then the State has met its burden of proof on the issue of the time of the offenses.

Record at 889. McNeely emphasizes that the State did not respond to his notice of alibi and argues that it was reversible error to instruct the jury that "[t]he State of Indiana is not required to specify the exact date or exact time of day of the offenses if the evidence available to the State does not permit such a statement of specific time or specific date." In support of his argument he cites Jennings v. State (1987), Ind., 514 N.E.2d 836.

In Jennings the defendant charged with burglary and theft filed a notice of alibi defense. The State responded, specifying an exact date upon which the alleged offenses occurred. At the conclusion of trial the trial court instructed the jury that "the State is not required to prove that [the offense] was committed on that particular date." On appeal, our supreme court held that it was reversible error to inform the jury that the State was not limited to proving that the crime alleged was committed on the date specified in the State's response to the notice of alibi. Id. at 837.

Jennings is readily distinguishable from the case at bar, however. In that case the State responded to the notice of alibi with a statement specifying an exact date and time that the alleged offense was committed, thereby limiting its evidence and assuming a special evidentiary burden. Here, the State never responded to the notice of alibi or restricted itself to an exact date in the Information, nor was it required to.

The filing of an alibi defense does not impose a greater burden of proof on the State than would otherwise be required. Merritt v. State (1978), 267 Ind. 460, 371 N.E.2d 382. However, an alibi defense does make the time of an alleged offense of the essence. The effect of the State's answer to the notice of alibi is to restrict the State to proof of the date in the answer. Webster v. State (1981), Ind., 426 N.E.2d 1295. However, the State need not respond to the alibi notice if it intends to prove the time or place alleged in the charging instrument. Gibbs v. State (1984), Ind.App., 471 N.E.2d 20; IND.CODE 35-36-4-2(a). In the event the State does not respond to the notice, only evidence consistent with the date and time set forth in the indictment or information may be introduced. Id.; IND.CODE 35-36-4-3(c). Moreover, the alibi statute requires that the State set forth the date of the offense charged only with such reasonable specificity as the circumstances of the case allow. Clifford v. State (1985), Ind., 474 N.E.2d 963; Thurston v. State (1985), Ind., 472 N.E.2d 198; Bruce v. State (1978), 268 Ind. 180, 375 N.E.2d 1042, cert. denied 439 U.S. 988, 99 S.Ct. 586, 58 L.Ed.2d 662.

In Bruce the defendant challenged the specificity of the time of the offense set forth in the State's response to his alibi notice, stating that the response should state the exact time as well as the exact date of the offense. Our supreme court responded:

Hereafter, if the evidence available to the State permits, the prosecutor's statement must specify the time of day as well as the date; conversely, if the evidence does not permit exact determination of the time of the offense more exactly than a period of several days, the State is required only to respond that the offense occurred within such a period. State v. Lizotte (Me.1969) 249 A.2d 874.

268 Ind. at 207, 375 N.E.2d at 1058.

In Thurston the defendant was charged with child molesting. The State responded to his notice of alibi, but the defendant moved that it be stricken because it encompassed a two month period rather than indicating the specific date of the offense. On appeal, the supreme court determined that the date set forth in the State's response was adequate because the circumstances did not permit a more exact statement. The court stated:

In the instant case, as in Bruce, the circumstances did not allow the narrowing of the time period beyond that stated in the State's amended response. The proof showed weekly meetings and repeated sexual aggressive acts between the victim and the defendant on Thursdays within a three-hour time span. The ten-year-old victim was unable to recall or relate a specific date when the activity proscribed by subsection (a) of the child molesting statute occurred. It would not be practicable in a case like this to confine the State to a more specific time in its proof.

472 N.E.2d at 201.

Finally, in Clifford the defendant was charged with criminal deviate conduct with a 12 year old child. The Information alleged the offense occurred "on or about December 21, 1981." The State's response to the defendant's notice of alibi included an identical statement of the date. Citing Bruce and Thurston, the supreme court held the response was adequate because the circumstances did not permit a more specific statement of the offense than that given. 474 N.E.2d at 971.

Likewise, in the case at bar, the circumstances did not permit the State to set forth a specific determination of the date of the offense. B.F. testified she could not remember the exact dates McNeely molested her. She recalled, however, that the molestations occurred on two Thursdays in late July and early August, near the period she was attending vacation bible school classes at her church on August 4 through 8. Under these circumstances, the trial court properly instructed the jury that the State was not required to prove the exact date the offenses were committed.

ISSUE II: Depraved Sexual Instinct Instruction

McNeely contends the trial court also erred in giving two instructions containing the phrase "depraved sexual instinct." At trial, B.F., her younger sister D.B., and T.M., McNeely's stepdaughter by a prior marriage, each related testimony regarding prior sexual contacts with McNeely. With regard to this testimony, the trial court gave the jury two instructions, the phrase depraved sexual instinct appearing in the State's tendered instruction and being inserted into McNeely's tendered instruction. The State's instruction reads as follows:

Evidence of other criminal offenses alleged to have been committed by the Defendant has been introduced. The Defendant is not on trial for anything that was...

To continue reading

Request your trial
13 cases
  • Tumulty v. State, 48A02-9409-CR-539
    • United States
    • Court of Appeals of Indiana
    • 28 Febrero 1995
    ...... After considering that information, the trial court may enhance the basic sentence, impose consecutive sentences, or both. McNeely v. State (1988), Ind.App., 529 N.E.2d 1317, 1327. A single valid aggravating circumstance is sufficient to support an enhanced sentence on appeal, ......
  • Parker v. State, 48A02-8901-CR-10
    • United States
    • Court of Appeals of Indiana
    • 18 Febrero 1991
    ...Trial courts have a great deal of discretion in determining whether to order sentences served consecutively. McNeely v. State (1988), Ind.App., 529 N.E.2d 1317; IND.CODE 35-50-1-2. We will reverse a sentence authorized by law as manifestly unreasonable only when no reasonable person could c......
  • Spoon v. State, 55A04–1205–CR–253.
    • United States
    • Court of Appeals of Indiana
    • 28 Mayo 2013
    ...such a statement of specific time or specific date.” R.L.H. v. State, 738 N.E.2d 312, 318 (Ind.Ct.App.2000) (citing McNeely v. State, 529 N.E.2d 1317, 1321 (Ind.Ct.App.1988)). “Moreover, the alibi statute requires that the State set forth the date of the offense charged only with such reaso......
  • Thompson v. State, 47A04-9201-CR-21
    • United States
    • Court of Appeals of Indiana
    • 28 Abril 1993
    ...need not respond to an alibi notice if it intends to prove the time or place alleged in the charging instrument. McNeely v. State (1988), Ind.App., 529 N.E.2d 1317, 1321. In the event the State does not respond to the notice, "only evidence consistent with the date and time set forth in the......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT