Oberst v. State, 14A04-0005-CR-222.
| Citation | 748 N.E.2d 870 |
| Decision Date | 06 April 2001 |
| Docket Number | No. 14A04-0005-CR-222.,14A04-0005-CR-222. |
| Parties | James K. OBERST, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Susan K. Carpenter, Public Defender of Indiana, David P. Freund, Deputy Public Defender, Attorneys for Appellant.
Karen Freeman-Wilson, Attorney General of Indiana, Joseph A. Samreta, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
James K. Oberst appeals his convictions for two counts of sexual misconduct with a minor, both class B felonies.1 Oberst raises two issues, which we restate as:
1) whether the admission of his confession constitutes fundamental error; and
2) whether the trial court abused its discretion in imposing the maximum sentence allowed by law.
We affirm in part, reverse in part, and remand for resentencing.
The facts most favorable to the convictions follow. On December 30, 1998, Oberst was charged with two counts of sexual misconduct with a minor, both class B felonies. The informations alleged that Oberst had sexual intercourse with fourteen-year-old P.G. on two separate occasions in July 1998. At Oberst's trial, P.G. testified that while at an auction one evening in July 1998, Oberst took her behind some hay bales and told her to bend over and pull her pants down. Oberst attempted to insert his penis into P.G.'s rectum. When that was unsuccessful, "the next thing [P.G.] knew [they] were over at [Oberst's] truck" where Oberst inserted his penis into P.G.'s vagina. Record, p. 372. Following the completion of P.G.'s testimony, the State called Detective Ron Morgan to the stand. Detective Morgan testified that Oberst, along with his attorney, came to the Sheriff's Department on December 2, 1998, and gave a tape recorded statement after being advised of his Miranda rights and signing a waiver of rights form. In the statement, Oberst admitted to having sexual intercourse with P.G. on two separate occasions: once behind some hay bales and once in the bed of his truck. Oberst's tape recorded confession was played for the jury without objection. The jury was also given a written transcript of the interview to read while listening to the tape.
At the conclusion of the evidence, Oberst's counsel made a motion for judgment on the evidence as to Count I. Oberst's counsel argued that the State did not meet its burden of proving that Oberst had engaged in sexual intercourse with P.G. on two occasions because P.G. testified that Oberst did not have sexual intercourse with her behind the hay bales but only in the truck. The State opposed the motion, arguing that Oberst's tape recorded confession that was admitted into evidence established that he had sexual intercourse with P.G. on two separate occasions. The trial court denied Oberst's motion for judgment on the evidence, and the jury found Oberst guilty of both counts of sexual misconduct with a minor. Oberst was sentenced to twenty years on each count, to be served consecutively, for a total of forty years imprisonment.
The first issue is whether the admission of Oberst's confession constitutes fundamental error. Oberst argues that the trial court erred in admitting his confession into evidence because there is no independent evidence, aside from his confession, that he had sexual intercourse with P.G. behind the hay bales.2 In Indiana, a defendant's extrajudicial confession is not admissible unless there is independent proof of the corpus delicti. Johnson v. State, 653 N.E.2d 478, 479 (Ind. 1995). To establish the corpus delicti, the State must produce evidence, other than the confession, that demonstrates: "`1) the occurrence of the specific kind of injury and 2) someone's criminal act as the cause of the injury.'" Id. (quoting Willoughby v. State, 552 N.E.2d 462, 466 (Ind.1990)). The corpus delicti need not be shown beyond a reasonable doubt; rather, the evidence must merely support an inference that a crime was committed. Id. at 480. The purpose of this rule is to reduce the risk of convicting a defendant based on his confession for a crime that did not occur, to prevent coercive interrogation tactics, and to encourage thorough criminal investigations. Id. at 480 n. 1.
Oberst acknowledges that he did not object to the admission of his confession at trial and that such a failure normally results in waiver of the issue on appeal. However, Oberst argues that the error was fundamental because being "convicted of and being sentenced to a term of twenty years for a crime that the State did not independently establish occurred . . . constitutes a blatant violation of basic principles. . . and [he] has been denied fundamental due process by being so convicted." Appellant's Brief, p. 17.
The fundamental error exception to the waiver rule is an extremely narrow one. Mitchell v. State, 726 N.E.2d 1228, 1235 (Ind.2000),reh'g denied. To rise to the level of fundamental error, the error must be so prejudicial to the rights of the defendant so as to make a fair trial impossible. Id. In other words, "the error `must constitute a blatant violation of basic principles, the harm or potential for harm must be substantial, and the resulting error must deny the defendant fundamental due process.'" Id. (quoting Wilson v. State, 514 N.E.2d 282, 284 (Ind.1987)).
Here, Oberst was charged with two counts of sexual misconduct with a minor as class B felonies by "perform[ing] sexual intercourse with P.G." Record, pp. 10, 12. Therefore, in order to convict Oberst on both counts, the State was required to prove that on two separate occasions Oberst had sexual intercourse with P.G. Sexual intercourse is defined as "an act that includes any penetration of the female sex organ by the male sex organ." Ind.Code § 35-41-1-26.
P.G.'s testimony on direct examination, in pertinent part, is as follows:
Q. Okay. And what did [Oberst] do there around by the hay bales?
A. The first time he just—he told me to take down my pants and bend over and . . .
A. He tried to—he tried to attempt to, but he said it wasn't working.
Q. Then what did he do?
A. Then, the next thing I knew, we was over at his truck in—and, then he— he . . .
Q. Did he insert it in your vagina behind the hay bales?
A. No, not behind the hay bales. At the—behind—in his truck, in the bed of his truck.
* * * * * *
Q. Okay. When he was in the back of the truck with you, did he insert his penis into your vagina?
A. Yeah.
Record, pp. 371-372. Then, on cross examination, P.G. testified as follows:
Q. [P.G.], you had stated that the first contact that you had with Mr. Oberst was behind the hay bales, is that correct?
A. Yes.
Q. And, you testified to this, I just want to make sure we get a clear understanding of what happened that evening. Do you know what sexual intercourse is?
A. When a—when a guy, you know, does it to a girl, and stuff.
Q. Based on what you know of that, behind the hay bales, did he—do you think you had sexual intercourse, meaning did he stick his penis inside your vagina?
A. Not behind the hay bales. In his truck he did.
Q. Okay, was he able to stick his penis inside your—your anus, your rectum—behind the hay bales?
A. No, he attempted to.
As the State seems to concede, P.G.'s testimony established only one incidence of sexual intercourse. That incident occurred in the back of Oberst's truck. As to the events that occurred behind the hay bales, P.G. testified unequivocally that Oberst did not have sexual intercourse with her at that time. Nevertheless, the State argues that it established the corpus delicti of both counts of sexual misconduct with a minor because P.G.'s testimony that Oberst attempted, albeit unsuccessfully, to insert his penis into her anus constitutes deviate sexual conduct.
Ind.Code § 35-42-4-9(a)(1) provides:
Deviate sexual conduct, in turn, is defined as an act involving "(1) a sex organ of one person and the mouth or anus of another person; or (2) the penetration of the sex organ or anus of a person by an object." Ind.Code § 35-41-1-9. Therefore, the State reasons that because there was an act involving the sex organ of Oberst and the anus of P.G., Oberst committed deviate sexual conduct, thus supporting Oberst's conviction for sexual misconduct with a minor.
The problem with this reasoning, as pointed out by Oberst, is that Oberst was charged with sexual misconduct by "perform[ing] sexual intercourse with P.G.," not by committing deviate sexual conduct. Record, pp. 10, 12. Therefore, we must consider whether the variance between the charging information and the proof adduced at trial is material or fatal.
The test to determine whether a variance between the proof at trial and a charging information or indictment is fatal is as follows:
(1) was the defendant misled by the variance in the evidence from the allegations and specifications in the charge in the preparation and maintenance of his defense, and was he harmed or prejudiced thereby; [or]
(2) will the defendant be protected in [a] future criminal proceeding covering the same event, facts, and evidence against double jeopardy?
Allen v. State, 720 N.E.2d 707, 713 (Ind. 1999).
In Allen, the defendant was charged with criminal deviate conduct. Id. at 712. Although that crime could have been proven by either proof: 1) of...
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