Mullins v. State

• Decision Date: 19 December 1985
• Docket Number: No. 3-185A8,3-185A8
• Citation: 486 N.E.2d 623
• Parties: Lewis E. MULLINS, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 623

486 N.E.2d 623

Lewis E. MULLINS, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 3-185A8.

Court of Appeals of Indiana,

Third District.

Dec. 19, 1985.

Susan K. Carpenter, Public Defender, M.E. Tuke, Deputy Public Defender, Indianapolis, for defendant-appellant.

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

GARRARD, Judge.

Following his second trial for the instant offense, ¹ Lewis Mullins was convicted of child molestation, a Class B felony. IC 35-42-4-3(a). Mullins received a sentence of six (6) years. He now appeals this conviction raising five issues for review which we rephrase as follows:

1) Whether the trial court committed fundamental error in failing to specifically instruct the jury on the element of criminal intent in this prosecution for child molestation.

2) Whether the evidence adduced at trial was so inherently incredible and unworthy of belief that it must be concluded the conviction was not supported by sufficient evidence.

3) Whether an instruction that a defendant could be convicted for child molestation on the uncorroborated testimony of the victim unduly emphasized the testimony of one witness.

4) Whether Mullins' instruction that a reasonable doubt as to an essential element of the crime could arise from a lack of evidence was erroneously refused.

5) Whether Mullins was denied effective assistance of counsel when his attorney failed to make a motion to strike the testimony of the State's serologist, Larry Huys.

I. Failure to instruct on criminal intent.

In its final charge to the jury, the trial court read the information charging Mullins, the applicable portion of the child molestation statute and the elements the State had to prove, as follows:

"This is a criminal case brought by the State of Indiana against LEWIS E. MULLINS. The case was begun with the filing of an Information. The Information in a criminal case is only an accusation. It is merely the formal method of charging a defendant with a crime. The Information is not evidence. The charge must be proven by evidence introduced during trial.

The Information in this case charges LEWIS E. MULLINS with CHILD MOLESTING, and the Defendant has pled not guilty to the charge. The State of Indiana has the burden to prove to each of you, beyond a reasonable doubt, every essential element of the charge.

Omitting the formal parts, the Information reads as follows:

'On or about the 1st day of September, 1982, in St. Joseph County, State of Indiana, LEWIS EDWARD MULLINS did perform deviate sexual conduct, to-wit: by LEWIS EDWARD MULLINS placing his penis into the rectum of [H.C.] with [H.C.] a child who was then under the age of twelve (12) years.'

"The statute defining the offense of CHILD MOLESTING reads as follows:

'A person who, with a child under twelve (12) years of age, performs or submits to sexual intercourse or deviate sexual conduct commits Child Molesting....' (IC 35-42-4-3(a))

' "Deviate sexual conduct" means an act of sexual gratification involving a sex organ of one person and the mouth or anus of another person.'

To sustain the charge of Child Molesting, the State must prove the following propositions:

That the Defendant:

1. performed deviate sexual conduct with [H.C.].

2. that [H.C.] was under twelve (12) years of age.

If you find from your consideration of all the evidence that each of these propositions has been proven beyond a reasonable doubt, then you may find the Defendant guilty.

However, if you find from your consideration of all the evidence that any of these propositions has not been proved beyond a reasonable doubt, then you should find the Defendant not guilty."

Mullins made no objection to these or any of the other instructions given by the trial court on grounds of the absence of a specific reference to the criminal intent required. Further, Mullins did not raise this issue in his belated motion to correct errors. In order to avoid complete waiver of this issue because of the foregoing procedural defaults, Mullins has attempted to characterize the failure to specifically instruct on the element of criminal intent as fundamental error.

The State recognizes that regardless of the fact that there is no specific mention of any criminal intent element or any mens rea in the relevant portion of the child molestation statute, ² that mens rea is in fact an element of child molestation. Newton v. State (1983), Ind.App., 456 N.E.2d 736, 739, n. 1. The issue is whether or not the trial court committed fundamental error denying Mullins due process by not specifically delineating the mens rea necessary for a conviction of child molestation.

The Supreme Court of Indiana dealt with the same issue in Snider v. State (1984), Ind., 468 N.E.2d 1037, although the case had come before it on a slightly different procedural posture. In Snider, the defendant never raised the trial court's failure to specifically instruct on a criminal intent element until his complaint for post-conviction relief. As in the present case, the trial court in Snider had instructed the jury on the elements of child molesting by tracking the child molestation statute. In Snider additional references were made to child molestation as a Class A felony where the offense involves the use or threat to use deadly force or while the offender is armed with a deadly weapon. After distinguishing the case of Morissette v. United States (1952), 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288, wherein the trial court had ruled that felonious intent was to be presumed, the Indiana Supreme Court in Snider found that:

"The rulings of the trial court in the Morissette case completely and effectively eliminated criminal intent as an ingredient of the offense. Instructions [sic] # 17 involved in this case does not eliminate or prohibit consideration of the intent to molest or injure. It does not preclude the defense from proving or arguing that any touching of the child was innocent. And it is in perfect accord with the statute which it purports to present. The instruction furthermore utilizes words which refer to deliberate injurious conduct, words which in their plain meaning would be understood by the jury as including criminal intent. The worst that can be said of this instruction is that it would have been clearer if it had sorted out criminal intent and separately referred to it. Fundamental error is one which if not rectified would deny fundamental due process. Malo v. State (1977), 266 Ind. 157, 361 N.E.2d 1201. This instruction had no such egregious influence upon the trial resulting in appellant's conviction. There is therefore no basis for relieving appellant of his prior procedural default and the judgment denying post-conviction relief is affirmed."

Despite the different procedural posture, the issue decided by Snider, that there is no fundamental error where a court's instructions on child molestation fail to sort out and separately refer to the criminal intent element so long as that element is not eliminated or consideration of it prohibited by the tendered instructions, is dispositive here. Absent a showing of fundamental error, Mullins' failure to object to the absence of a specific criminal intent instruction and offer one himself as well as his failure to allege this error in his motion to correct errors constitute a waiver of this issue ending further consideration on appeal.

II. Sufficiency of the evidence.

Our standard of review when the sufficiency of the evidence is challenged is well settled. We will not reweigh the evidence or judge the credibility of the witnesses upon review. Rather, we will consider only that evidence most favorable to the State and reasonable inferences adduced therefrom. When there is substantial evidence of probative value sufficient to establish each element of the crime charged beyond a reasonable doubt, the verdict will not be disturbed. Loyd v. State (1980), 272 Ind. 404, 398 N.E.2d 1260, 1264, cert. denied 449 U.S. 881, 101 S.Ct. 231, 66 L.Ed.2d 105.

Mullins contends that the only direct evidence linking him to the molestation of H.C. is the testimony of H.C. and her brother B.C. Mullins argues that the testimony of H.C., eleven years old at the time of the offense and twelve at the trial, and the testimony of B.C., nine years old at the time of the offense and ten at the trial, is inherently incredible and unworthy of belief. Mullins cites the cases of Thomas v. State (1958), 238 Ind. 658, 154 N.E.2d 503, and Penn v. State (1957), 237 Ind. 374, 146 N.E.2d 240, for support. In Stewart v. State (1982), Ind., 437 N.E.2d 1328, at 1330 n. 2, the Supreme Court explained its holding in Thomas as follows:

"Defendant cites Thomas v. State (1958), 238 Ind. 658, 154 N.E.2d 503, wherein we reversed a conviction for public indecency based solely upon the testimony of two girls, ages seven and eight. In Thomas, unlike the case at bar, not only was the credibility of the girls highly suspect, but also the appellant had presented an unimpeachable alibi."

In Penn, the husband was accused of the statutory rape of the couple's frequent babysitter. The babysitter had testified that she often stayed overnight to babysit in the morning and eventually began sleeping in the same bed as husband and wife wherein husband would engage in intercourse first with one then with the other, with the knowledge of both. The babysitter further maintained that she and the wife never talked about these experiences or the subject of sex at all. The Penn court found her testimony so improbable and incredible that reasonable men would not find that husband's guilt had been established beyond a reasonable doubt. The Penn court maintained:

"In the extremely rare instances where the parties are so depraved that they see nothing wrong with two women sleeping and sharing the sexual attention of the husband of one of them in the same bed, then it is...