Moffatt v. State, No. 36S00-8812-CR-970

• Docket Nº: No. 36S00-8812-CR-970
• Citation: 542 N.E.2d 971
• Case Date: August 29, 1989
• Court: Supreme Court of Indiana

Page 971

542 N.E.2d 971 Roger L. MOFFATT, Appellant,
v.
STATE of Indiana, Appellee. No. 36S00-8812-CR-970. Supreme Court of Indiana. Aug. 29, 1989.

Page 972

Terrance W. Richmond, Milan, for appellant.

Linley E. Pearson, Atty. Gen. and Richard C. Webster, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Justice.

A jury trial resulted in appellant's conviction of Burglary, a Class A felony, for which he received a sentence of twenty (20) years, and Theft, a Class D felony, for which he received a sentence of two (2) years, the sentences to be served concurrently.

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The facts are: On July 23, 1986, fourteen-year-old Cathy Barker was alone in her home in Seymour when she heard a noise coming from another room. Upon investigating, she found appellant, whom she knew because he had lived across the street for over ten years, standing in the living room. When he saw Cathy, he dropped a white bag he was carrying, grabbed her shirt, and told her "not to tell or else." He then hit her in the mouth with his fist, which caused her to fall to the floor and hit her head.

When Cathy first told her mother Carol and the police about the incident, she said she did not know who the perpetrator was because she stayed home by herself frequently, and she feared for her safety if she identified appellant. However, after she was assured by police that she would be safe, she told them that appellant was the person who hit her.

Before the police arrived, appellant called Carol Barker and admitted taking her property and told her that he would return the stolen goods if she would promise not to put him in jail. Appellant's sister testified that appellant handed her a bag and told her to take it back over to Carol, which she did. The bag contained money and jewelry which had been taken from the Barker home. When Carol received the bag of goods, appellant, who was on his front porch, stated that he did not hit Cathy on purpose, and he did not know what had gotten into him.

Appellant testified that Cathy invited him into her home and asked him if he could get some marijuana. He stated that Cathy offered to set up a scheme in which they would ransack her home, steal valuables, call the police, and act as though they had been burglarized so that they would have money for marijuana and the county fair. Appellant took the bag of goods to his home, and when he saw the police at the Barker residence, he hid in a closet. Police found him in the closet and told him that they were investigating a burglary, and appellant responded, "Well I didn't do it and you tell Cathy Barker to get over here."

Appellant asserts his convictions must be reversed because the prosecutor improperly asked him questions about the consequences of the jury believing him and disbelieving Cathy. Appellant responded that he had no idea what would happen to him if they disbelieved Cathy and believed him. He contends that the questions amounted to prosecutorial misconduct, were demeaning to his credibility, and were irrelevant.

The record shows that appellant made no objection to the prosecutor's questioning during his cross-examination; therefore, the issue has been waived. Lopez v. State (1988), Ind., 527 N.E.2d 1119.

Additionally, though the question of whether appellant knew what would happen to him if the jury believed a certain witness was irrelevant, considering the evidence establishing the State's case, it did not place him in a position of grave peril. Maldonado v. State (1976), 265 Ind. 492, 355 N.E.2d 843. We find no reversible error.

Appellant also argues prosecutorial misconduct occurred when the prosecutor asked him about a prior conviction. During cross-examination, the following testimony occurred:

"Q: Now you have admitted to the theft of July the end of '86, is that correct?

A: Yes.

* * * * * *

Q: Now, if you are convicted of theft ... well let me ask you this. If you are convicted of the burglary of ... as charged, burglary causing bodily injury to another person. Will you receive, possibly receive a heavier sentence than if you were convicted of theft?

A: Yes, I probably would.

Q: Okay. So it is pretty important that the jury believe you isn't it?

A: Well, that is totally up to them. I told them what happened.

Q: It is important to you that they believe you?

A: Yes."

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Appellant believes the prosecutor's reference before the jury to his possible sentences was improper because it...