Oatts v. State

• Decision Date: 20 January 2009
• Docket Number: No. 49A02-0805-CR-447.,49A02-0805-CR-447.
• Citation: 899 N.E.2d 714
• Parties: Arthur OATTS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

899 N.E.2d 714

Arthur OATTS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A02-0805-CR-447.

Court of Appeals of Indiana.

January 20, 2009.

Michael R. Fisher, Indianapolis, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Karl M. Scharnberg, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

BROWN, Judge.

Arthur Oatts appeals his conviction for child molesting as a class C felony.¹ Oatts raises two issues, which we revise and restate as:

I. Whether the trial court abused its discretion by excluding evidence that the victim had previously viewed an allegedly pornographic video and had previously been molested; and

II. Whether the trial court erred by responding to jury questions during deliberations after the jury had indicated that it had arrived at a decision.

We affirm.

The relevant facts follow. In March 2007, A.S., who was born on February 28, 1999, went to visit her grandparents, Oatts and Carla Oatts ("Carla"). Oatts took A.S. to a restaurant to get some food. The two of them took the food back to the house and ate it on Oatts's bed. After A.S. finished eating, she fell asleep.

Later, A.S. woke up because Oatts was rubbing her butt with his hand. Oatts then started to rub A.S.'s chest. Oatts, who was wearing only his underwear, then pulled A.S. closer, kissed her on her forehead, and put her hand on his "private" over his clothes. Transcript at 165. A.S. "[k]ept taking" her hand off of Oatts's "private," but Oatts "kept putting it back on." Id. at 166. A.S. then got up to use the bathroom, came back, and said, "I miss my mommy," and Oatts said, "[Y]ou'll be all right." Id. A.S. lay down for a minute and then went to her bedroom and fell asleep.

Later, Kristina Smith, A.S.'s mother, told A.S. that A.S. was going to spend Easter with her grandparents. A.S. said that she did not want to go, started crying, and eventually told her mother that she did not want to go to her grandparents' house "[b]ecause her grandpa was doing things to her that he shouldn't been [sic] doing." Id. at 220. A.S.'s mother called the police.

The State charged Oatts with three counts of child molesting as class C felonies. On June 19, 2007, the trial court conducted a child hearsay hearing. During this hearing, Oatts's attorney questioned A.S. about a videotape she had seen a portion of several years earlier in which there were "girl's [sic] touching boy's [sic] pee-pees in the videotape."² Id. at 20. Oatts's attorney also questioned A.S. regarding allegations against Tony.³ The prosecutor objected to the line of questioning and stated, "We're talking about reliability of statements with regard to Arthur Oatts, not Tony or other videotapes or anything." Id. at 21. The trial court sustained the prosecutor's objection.

On January 15, 2008, the State filed a motion in limine requesting that Oatts, his counsel, and witnesses be instructed not to mention any testimony, questions, or statements by attorneys or witnesses in violation of Ind. Evidence Rule 412. At the beginning of the jury trial on January 16, 2008, the State brought up its motion in limine. Oatts's attorney argued that the State was attempting "basically to eliminate my opportunity to let the jury know that there is ... knowledge on the part of this young lady that would allow her or possibly cause her to have an idea, create an idea in her mind because of her past experience where she knows she can get something accomplished if she mentions these specific acts, and she's able to discuss it because she's seen it before or it's happened to her before, and so I think that it's very relevant for and very important for my client that he be able to bring into evidence the fact that there was another individual who did in fact molest her." Id. at 118-119. Oatts's attorney also stated that the "similarities of the allegations are very, very close" and the current allegation "is that Mr. Oatts touched [A.S.] while they were in bed together, and in fact Tony touched [A.S.] while she was in bed." Id. at 120.

The trial court granted the State's motion in limine. Specifically, the trial court ruled that Oatts was not allowed to bring up the fact that A.S. was previously molested or the fact that A.S. had watched a sexual video. After voir dire, Oatts's attorney argued that "there was a juror that was stricken, however her comment which I think is—is the reason counsel struck her, little girls just don't make up things unless they have some experience with it." Id. at 146. Oatts's attorney also argued that the trial court's ruling on the State's motion in limine eliminated his ability to argue that A.S. had prior experience. The trial court noted that Oatts's objection to the trial court's prior ruling on the motion in limine was preserved for the record.

When the parties were reviewing the verdict forms, Oatts's attorney argued that the instructions for Counts I, II, and III were identical and did not allege a specific act and asked, "how can he be found guilty of the same thing three times?" Id. at 209. Oatts's attorney asked that Counts II and III be dismissed and that only Count I be presented to the jury. The prosecutor argued that A.S.'s testimony supported three separate acts of molestation. The trial court held that "the jury has heard evidence of three separate touching[s] which they may determine is sufficient evidence under the elements charged in each count" and denied Oatts's motion to dismiss Counts II and III. Id. at 212.

During deliberations, the jury asked the trial court, "[W]hat specific touching is each count attributable to? Is count one bottom touching? Is count two breast touching? Is count three penis touching?" Id. at 341. The trial court immediately contacted counsel via telephone and referred the jury back to their instructions. Specifically, the trial court sent the bailiff back into the jury room with the statement that counsel were not presently available such that the trial court could directly answer the jury's questions, that they had their instructions, and they could refer to their instructions to determine whether or not the instructions assisted them with their questions. Id. at 342.

The jury then asked, "[M]ay we please view the statements given by both the victims and the defendant with the detective." Id. at 341. The court determined that the jury had a "second request regarding the first question," and brought counsel back together for a "face-to-face" with the trial court regarding the jury's question. Id. at 342.

After some discussion, the trial court sent the bailiff to retrieve Title 34 of the Indiana Code so that the trial court could examine Ind.Code § 34-36-1-6. When the bailiff went to look for the statute book, the jury informed the bailiff that "they're done" and "[t]hey just need a[sic] answer to their question." Id. at 354. Oatts's attorney stated, "Judge, what I'm suggesting was—what I asked for just dismiss counts two and three, then we don't have the confusion, then it's either— they've reached a decision, right? So it's either guilty or not guilty. So it's not a question how do we fill out the forms, and then that's it. It's over. There's a verdict, and it's going to happen in five minutes if the State dismisses counts two and three." Id. at 355-356.

The trial court proposed "that regards to this question, what specific touching is each count attributable to, that the Court answer their question with [']it is the job of the jury to determine how to complete the verdict form for each of the three counts.[']" Id. at 366. Oatts's attorney objected on the basis that "the jury has very clearly indicated they have not reached an impasse, and any information that would be sent without stipulation of the parties violates the statute that essentially says that the Court can only provide additional information if the jury has indicated they've reached an impasse." Id. at 367-368. After some discussion, the trial court indicated that it was going to instruct the jury "regarding their question, of what specific touching is each count attributable, the answer—the Court's answer is that it is the job of the jury to determine how to complete the verdict forms for each count charged."⁴ Id. at 367.

The jury found Oatts guilty as charged. The court entered judgment only on the first count due to double jeopardy concerns. The court sentenced Oatts to six years with five years suspended to probation.

I.

The first issue is whether the trial court abused its discretion by excluding evidence that A.S. had viewed an allegedly pornographic video years earlier in which there were "girl's [sic] touching boy's [sic] pee-pees in the videotape" and that A.S. had been previously molested. Id. at 20. The trial court has broad discretion in ruling on the admission or exclusion of evidence. Sallee v. State, 785 N.E.2d 645, 650 (Ind.Ct.App.2003), trans. denied, cert. denied, 540 U.S. 990, 124 S.Ct. 480, 157 L.Ed.2d 385 (2003). A trial court's ruling on the admissibility of evidence will be disturbed on review only upon a showing of an abuse of discretion. Id. An abuse of discretion occurs when the trial court's ruling is clearly against the logic, facts, and circumstances presented. Platt v. State, 589 N.E.2d 222, 229 (Ind.1992). "Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and ... [i]n case the ruling is one excluding evidence, the substance of the evidence was made known to the court by a proper offer of proof, or was apparent from the context within which questions were asked." Ind. Evidence Rule 103.

Oatts argues that the trial court abused its discretion by excluding the evidence that A.S. had watched the video and had been previously molested. Specifically, Oatts argues that: (A) the exclusion of the evidence did not serve the purpose of Ind. Evidence Rule 412;⁵ and (B) the...