Medina v. State, 45A03-0408-CR-373.

• Decision Date: 02 June 2005
• Docket Number: No. 45A03-0408-CR-373.,45A03-0408-CR-373.
• Citation: 828 N.E.2d 427
• Parties: Rogelio MEDINA, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

828 N.E.2d 427

Rogelio MEDINA, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 45A03-0408-CR-373.

Court of Appeals of Indiana.

June 2, 2005.

Stephen Bower, Cohen & Thiros, P.C., Merrillville, IN, Stephen M. Komie, Komie & Associates, Chicago, IL, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Stephen Tesmer, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

MATHIAS, Judge.

Rogelio Medina ("Medina") was convicted in Lake County Superior Court of Class A felony child molesting¹. Medina appeals, raising the following restated and consolidated issues for review:

I. Whether the trial court committed reversible error when it omitted a material element from Medina's jury instructions;

II. Whether the trial court abused its discretion when it excluded various items of evidence proffered by Medina;

III. Whether the trial court committed judicial misconduct when it communicated with a magistrate concerning an evidentiary ruling; and,

IV. Whether Medina's sentence is appropriate.

Concluding Medina has failed to establish his right to appellate relief, we affirm.

Facts and Procedural History

Between January 11, 2000 and September 16, 2001, A.L., who was roughly nine years old, lived with her mother in East Chicago. During this period, A.L. spent the night with her grandmother and step-grandfather, Medina, on several occasions.

Medina sexually molested A.L. at least five times during this period. On one occasion, A.L. was playing with her dolls in Medina's basement when Medina began to play pornographic videotape, removed A.L.'s clothing, and inserted his tongue into A.L.'s vagina. When A.L. told Medina to stop, Medina told A.L. that she would like it and that she should not tell anyone or he would go to jail. On other occasions, Medina would rub A.L. beneath her clothing and digitally penetrate her vagina. Medina also forced A.L. to put his penis inside her mouth.

In January of 2003, A.L. reported Medina's actions to her mother, and A.L.'s mother contacted the police. On January 21, 2003, the State charged Medina with Class A felony child molesting. The State's charging information read:

Willie Williams, upon oath, says that between September 16, 2000 and September 16, 2001, in the County of Lake, State of Indiana, Rogelio Medina a person at least twenty-one (21) years of age did perform or submit to deviate sexual conduct with [A.L.], a child under fourteen (14) years of age, contrary to IC XX-XX-X-X and against the peace and dignity of the State of Indiana.

Appellant's App. p. 14.

On May 6, 2003, the State amended its charging information to read:

Affiant, upon oath, says that between January 1, 2000 and September 16, 2001, in the County of Lake, State of Indiana, Rogelio Medina, a person at least twenty-one (21) years of age, did knowingly or intentionally perform or submit to deviate sexual conduct with [A.L.], a child under fourteen (14) years of age, contrary to IC XX-XX-X-X, and against the peace and dignity of the State of Indiana.

Appellant's App. p. 32 (emphasis added).

On February 13, 2004, the State again moved to amend its charging information by omitting "knowingly or intentionally" and adding a Class C felony child molesting count. Appellant's App. p. 52. The State's motion was denied as untimely on March 1, 2004.

On March 22, 2004, Medina filed a supplemental answer to the State's discovery order and included an edited videotape of Medina and A.L. together at various family functions, eight photographs, and a t-shirt that allegedly had the pre-printed statement of "I love you" on it. Appellant's App. p. 55. The State moved to exclude this evidence in a March 22, 2004 evidentiary hearing, which was conducted by Magistrate Kathleen A. Sullivan ("Magistrate Sullivan").

After this hearing, Magistrate Sullivan issued the following order:

The photos will be allowed, if the writings on the back are redacted, and if a sufficient foundation can be laid. The videotape is incomplete, and has been altered to include placards depicting the dates of the events taped, which constitutes hearsay. Additionally, the evidence is impermissible character evidence. Therefore, the video tape is inadmissible. The t-shirt also contains hearsay, and is inadmissible.

Appellant's App. p. 56.

The State then moved to amend its charging information by redacting "knowingly or intentionally." Medina objected to this amendment solely on the basis of tardiness. Tr. p. 11. The State's motion was granted over Medina's objection.

Medina's jury trial began on March 24, 2004, with Judge Salvador Vasquez ("Judge Vasquez") sitting as judge. At the start of proceedings, Medina filed a motion to reconsider Magistrate Sullivan's order excluding the videotape and t-shirt. During argument, Judge Vasquez noted that he had discussed the evidentiary rulings at issue with Magistrate Sullivan before taking the bench. Tr. pp. 59-60. Judge Vasquez denied Medina's Motion to Correct Error and reversed Magistrate Sullivan's previous decision to admit Medina's photographs. Tr. pp. 101-02.

After Medina and the State finished presenting evidence, instructions were read to the jury. Jury instruction number one recited the State's amended charging information, which did not include "knowingly or intentionally." Tr. p. 79.

Jury instruction number four stated in part:

Before you may convict the defendant of Child Molesting, a Class A felony, the state must have proved each of the following elements:

The defendant:

(1) Performed or submitted to deviate sexual conduct with [A.L.];

(2) When the child, [A.L.], was under fourteen (14) years of age, and;

(3) The defendant was at least twenty-one (21) years of age at the time.

Tr. p. 82. This instruction, as with any of the other instructions, did not indicate the State must prove Medina acted with a particular mens rea. Appellant's App. pp. 79-95. Medina did not object to the instruction's absence of a mens rea. Tr. pp. 340-49.

On March 25, 2004, Medina was convicted of Class A felony child molesting. On June 21, 2004, the trial court sentenced Medina to the Department of Correction for twenty-seven years, three years below the presumptive sentence for a Class A felony. See Ind.Code § 35-50-2-4 (2004).

While sentencing Medina, the trial court found the following mitigating factors: (1) Medina has no prior criminal history; (2) Medina's age of sixty-nine suggests he would not fare well in prison; and (3) Medina has strong community support. The trial court then stated, "[t]he court finds nothing in aggravation but the nature and circumstance of the offense preclude further mitigation below the twenty-seven years imposed." Appellant's App. p. 118. Medina now appeals.

I. The Mens Rea of Child Molestation

Medina contends it was reversible error for the trial court's jury instruction to exclude the mens rea requirement from Class A felony child molestation. We review the trial court's instruction of the jury for an abuse of discretion. Kelly v. State, 813 N.E.2d 1179, 1185 (Ind.Ct.App.2004), trans. denied.

A. The Mens Rea of Child Molestation

The State contends the trial court did not err because there is no mens rea requirement for a child molestation conviction. Br. of Appellee at 6. We disagree. The culpability required for a child molestation conviction is "knowingly or intentionally." C.L.Y. v. State, 816 N.E.2d 894, 905 (Ind.Ct.App.2004), trans. denied (citing Louallen v. State, 778 N.E.2d 794, 794 (Ind.2002)); see also State v. Keihn, 542 N.E.2d 963, 967-68 (Ind.1989)

(where the legislature fails to specify a level of mental culpability with respect to an offense, a level of mental culpability of knowingly will be presumed to be required); Kien v. State, 782 N.E.2d 398, 410 (Ind.Ct.App.2003),

trans. denied; Clark v. State, 728 N.E.2d 880, 885 (Ind.Ct.App.2000); Cardwell v. State, 516 N.E.2d 1083, 1086 (Ind.Ct.App.1987),

trans. denied (regardless of the fact that there is no specific mention of a mens rea in the relevant portion of the child molestation statute, mens rea is an element of child molestation); Mullins v. State, 486 N.E.2d 623, 625 (Ind.Ct.App.1985),

overruled on other grounds by Ludy v. State, 784 N.E.2d 459, 462 n. 2 (Ind.2003); Newton v. State, 456 N.E.2d 736, 739 n. 1 (Ind.Ct.App.1983).

Against this common law background, the instruction at issue was erroneous. We, therefore, consider the effect of that error.

B. Federal Harmless Error

The federal harmless error rule announced by Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), applies to the failure to submit a mandatory element to the jury. Neder v. United States, 527 U.S. 1, 4, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999); see also Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993)

. In concluding that the failure to submit the element in question was harmless, Neder stated "[r]eversal without any consideration of the effect of the error upon the verdict would send the case back for retrial — a retrial not focused at all on the issue of [the excluded element], but on contested issues on which the jury was properly instructed." Neder, 527 U.S. at 15,

119 S.Ct. 1827. The same can be said of the exclusion of mens rea in the case at bar. Were we to remand this case, Medina would not challenge his mens rea on remand but would again deny the commission of the acts underlying his offense.

Quite simply, it is impossible for one to accidentally commit the acts committed by Medina. Because of this impossibility, there can be no doubt that Medina was not prejudiced by the erroneous instruction and remanding the case for retrial would merely allow Medina to present the same defense that was already rejected by a jury.²

We believe the strongest caution should be exercised when applying harmless error analysis to the omission of an element of the offense. However, because it can be said beyond any doubt that the failure...