Oswalt v. State, 35A02–1208–CR–684.
| Citation | 995 N.E.2d 685 |
| Decision Date | 30 September 2013 |
| Docket Number | No. 35A02–1208–CR–684.,35A02–1208–CR–684. |
| Parties | Gary OSWALT, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff. |
| Court | Court of Appeals of Indiana |
OPINION TEXT STARTS HERE
P. Stephen Miller, Fort Wayne, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Angela N. Sanchez, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Gary Oswalt appeals his convictions and sentence for two counts of child molesting as class A felonies, child solicitation as a class D felony, and five counts of possession of child pornography as class D felonies. Oswalt raises five issues which we revise and restate as:
I. Whether the trial court abused its discretion when it refused to dismiss two jurors for cause, and then a third juror for cause after Oswalt claims he had exhausted his peremptory strikes;
II. Whether the trial court abused its discretion in denying Oswalt's motion to dismiss five counts of child pornography as class D felonies; III. Whether the evidence is sufficient to sustain Oswalt's convictions for five counts of possession of child pornography as class D felonies;
IV. Whether Oswalt was denied a fair trial due to the charges of possession of child pornography; and
V. Whether Oswalt's sentence is inappropriate in light of the nature of the offense and the character of the offender.
We affirm.
J.B. was born on September 12, 1994 and after her parents' divorce, lived with her father and visited her mother. On September 25, 2002, J.B.'s mother married Oswalt and moved in with him. When J.B. was about seven years old, she and Oswalt were in a swimming pool and Oswalt showed J.B. his testicles and asked her if she wanted to touch them. She did and thought they felt bumpy. J.B. told her mother about the incident, but her mother did not believe her.
At a later time, Oswalt was in his bedroom and as J.B. walked by he asked her if she wanted to see something. Oswalt was sitting on the bed with his legs covered by a blanket. When J.B. walked in the room, Oswalt removed the blanket and exposed his erect penis. Oswalt asked J.B. if she wanted to touch his penis, and J.B. touched his penis with her hands. Oswalt asked J.B. to touch his penis with her mouth, and she touched his penis with her tongue. After J.B. stopped, Oswalt told J.B. that “it was our little secret,” which was something that he would say multiple times. Transcript at 529.
Oswalt drove a truck for a living, and J.B. and other children sometimes took trips with him. Oswalt usually picked J.B. to accompany him. Oswalt told J.B.'s mother that he wanted J.B. on trips with him because he did not “get along very well” with her and that if J.B. went with him they “could talk things out and she couldn't get away from him.” Id. at 794. During the trips, J.B. touched Oswalt's penis with her hands and mouth. Oswalt touched J.B.'s “privates” and vagina with his fingers both inside and outside. Id. at 534. During a trip to Texas, Oswalt tried inserting his penis into J.B. and it hurt J.B. “a lot.” Id. These trips occurred over a period of years. When J.B. would not want to go on the trips with him, Oswalt would become frustrated with her, start “guilting her down, kind of making her feel like she's the bad guy.” Id. at 748.
While Oswalt and J.B. were in a tent in the backyard of his house, Oswalt talked about using his mouth on J.B.'s vagina. Oswalt then touched J.B.'s vagina with his mouth and hands and put his tongue inside her “vagina hole.” Id. at 543.
J.B. began to like the attention that Oswalt was giving her. Initially, she thought that the activities between her and Oswalt were perfectly normal and she trusted him. After an assembly in elementary school regarding child molestation, J.B. realized that Oswalt was doing something wrong. She went to Oswalt and questioned what she was doing with him, and Oswalt told her that “all daughters and daddies do it.” Id. at 547. Oswalt then showed J.B. websites with pictures of girls her age and men his age, and this convinced J.B. to keep doing things with him. Oswalt was aware that Hermione Granger, a character in Harry Potter, was J.B.'s favorite character and that J.B. viewed her as a role model, and he showed J.B. a naked picture of Hermione Granger. Oswalt also showed J.B. images of fathers and daughters on a laptop computer. He told her that her mother would not believe her and that it was their “little secret.” Id. at 592.
The touches between Oswalt and J.B. stopped before J.B. became fourteen years old. Oswalt told J.B. that he wanted to “do the touches again” and would “do ... guilt trips like nobody loves [him] anymore, things like that.” Id. at 549. This continued until the day before J.B.'s sixteenth birthday, September 11, 2010, when Oswalt sent J.B. a text message that stated: State's Exhibit 5.
After hearing a sermon at her youth group about doing the right thing, J.B. wrote a letter to her mother because she was feeling guilty and thought that her mother had the right to know. Near the end of February 2011, the letter fell out of J.B.'s purse and her stepmother found it. J.B.'s father and stepmother discussed the letter with J.B.
J.B.'s mother also discussed the letter with her. When her mother confronted Oswalt, he initially stated that he was innocent and that he could not believe J.B. was “doing this.” Transcript at 822. Oswalt blamed J.B.'s mother for the allegations that were coming out because she “couldn't get [her] daughter to shut up.” Id. at 823. Oswalt made J.B.'s mother call J.B. and threaten her that Oswalt would press charges against J.B.'s boyfriend, who was older than J.B., if she continued pressing charges against him.
J.B.'s father eventually contacted the police. On April 2, 2011, J.B. was interviewed at a child advocacy center. Her mother consented to a search of two computers, a desktop and a laptop.
Huntington Police Detective Matthew Hughes found four sites in the “recent history” of the computer including “www. youngest girlsforyou. com, www. incestroom. com[,] www. mysexy daughter. net, and ... www. dadsfuck daughter. net.” Id. at 439–440. Detective Hughes sent both computers for further examination. Jeremy Chapman, a forensic examiner with the Indiana State Police, did not retrieve any images of child pornography from the desktop computer but retrieved nine images and one movie as evidence from the laptop which had been deleted from the computer. Chapman found an image that was reported to be the actress that played Hermione in Harry Potter and a movie titled “PTHC—Open–NOBULL_family fun dad teaches bro and sis abt 9, 10 kid sex incest pedophilia boy girl 12.38.mpg.” 1 State's Exhibit 12 at 4. The movie had a creation date of 8:44 a.m. on May 24, 2010, and had a “last access date” of 7:25 a.m. on January 28, 2011. Transcript at 691. One of the images of child pornography had a creation date of September 21, 2009, and the image was last accessed on January 28, 2011.
On April 28, 2011, the State charged Oswalt with Count I, child molesting as a class A felony; Count II, child molesting as a class A felony; Count III, child molesting as a class C felony; and Count IV, child solicitation as a class D felony. On August 19, 2011, the State moved to amend the charging information to add Counts V, VI, VII, VIII, and IX, which all alleged possession of child pornography as class D felonies. The court granted the State's motion to amend.
On February 29, 2012, Oswalt moved for severance of the charges of possession of child pornography from the remaining charges, and also filed a motion to dismiss Counts III, V, VI, VIII, and IX alleging that the charges were outside the statute of limitations. On March 15, 2012, the court denied Oswalt's motion for severance, denied his motion to dismiss Counts V, VI, VIII, and IX, and granted his motion to dismiss Count III.
During voir dire, Juror No. 7 stated: “I see somebody over there that I know, I don't know if they're involved in the case and if they were I, a relative I might have a problem.” Id. at 179–180. At a sidebar conversation, Oswalt's counsel indicated that he did not know what Juror No. 7 was talking about and that he was hesitant to “bring it out in front of everybody,” and the court stated: “Why don't you just ask her if, go through the ... list of witnesses, go through the witnesses and ask if she knows or anybody knows any of the witnesses, let's do that.” Id. at 180–181. Juror No. 7 then identified the person she recognized as a woman, that she knew her sisters, did not remember her last name, and stated: “I would rather not sit on a jury for somebody that's her....” Id. at 182.
The following exchange then occurred:
Id. at 182–185. The court then read the witness list and the following exchange occurred:
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Oswalt v. State
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