Peckinpaugh v. State, 1081S290

• Decision Date: 14 April 1983
• Docket Number: No. 1081S290,1081S290
• Parties: Gilbert PECKINPAUGH, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 576

447 N.E.2d 576

Gilbert PECKINPAUGH, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 1081S290.

Supreme Court of Indiana.

April 14, 1983.

Emil J. Becker, Jr., David W. Lamont, Evansville, for appellant.

Linley E. Pearson, Atty. Gen., Kathleen G. Lucas, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Defendant (Appellant) was convicted, after trial by jury, of Count I, Criminal Deviate Conduct, Ind.Code Sec. 35-42-4-2(a)(1) (Burns 1979), Count II, Battery, Ind.Code Sec. 35-42-2-1(3) (Burns 1979), and Count III, Child Molesting, Ind.Code Sec. 35-42-4-3(b) (Burns 1979) and was sentenced to a total of thirty-one (31) years imprisonment. This direct appeal presents the following issues:

(1) Whether the trial court erred in admitting an out of court statement of one of the victims, over objection that the State was attempting to impeach its own witness.

(2) Whether the evidence is sufficient to support the convictions. ¹

* * *

ISSUE I

At trial, the alleged victim in Counts I and II acknowledged having given a prior statement to the police but testified that its contents were false. The statement was then read to the jury, over objection that the State was attempting to impeach its own witness. Defendant argues that the witness was impeached by "a single isolated event in his life", which "was not in any manner connected with his general reputation"; and therefore, in violation of Morris v. State, (1977) 266 Ind. 473, 484, 364 N.E.2d 132, 139, cert. denied, (1977) 434 U.S. 972, 98 S.Ct. 526, 54 L.Ed.2d 462, where we stated, "It is well settled, of course, that a witness The statement from Morris has been lifted out of context and does not foreclose impeachment by showing that the witness has made a prior, inconsistent statement. Unlike Morris, this case does not concern an attempt to impeach a witness by showing specific and unrelated prior bad acts. There was no error in the trial court's overruling Defendant's objection.

cannot be impeached by single events, but rather such must be done by proving his general reputation."

ISSUE II

Defendant's challenges to the sufficiency of the evidence are predicated upon crediting only the in court testimony of both alleged victims, defendant's children, Robert, age 16, and Robin, age 11. Both Robert (Counts I and II) and Robin (Count III) had given sworn statements to the police, although Robert testified that he did not remember having taken an oath. In court, both witnesses testified that their prior statements were completely false and that they had lied when they made them.

Each statement concerns unrelated events, an alleged assault (Counts I and II) against Robert on June 12, 1980 and an act of child molesting (Count III) against Robin on June 9, 1980. The statements constituted the only evidence of the corpus delecti of the charges and the only evidence of the identity of the perpetrator. They were classic hearsay accounts, which the declarants, while acknowledging having made them, nevertheless repudiated in court. Subsequently, the declarants were subjected to cross-examination. Upon this state of the record, the statements were admissible as substantive evidence under Patterson v. State, (1975) 263 Ind. 55, 57-58, 324 N.E.2d 432, 484-85.

Acknowledgment of the statements' admissibility and the jury's capacity to utilize the statements in performing its fact finding responsibility does not end our inquiry. As was demonstrated in Watkins v. State, (1983) Ind., 446 N.E.2d 949 (No. 978S198), evidence admitted under the Patterson exception to the hearsay rule, standing alone, is not sufficient to sustain a conviction. In Watkins we examined all of the evidence in the record to determine if there was direct or circumstantial evidence from which the jury could disbelieve Debra Cunningham's in court testimony and credit her out of court statements, which she had repudiated and which implicated Watkins. We found substantial evidence of probative value in the form of an excited utterance, the substance of which supported the out of court statements, and depositional testimony, which also supported the out of court statements and additionally, was taken under oath and subject to cross examination. In performing this task, we adhered to our traditional standard of review with respect to sufficiency claims, and we followed earlier decisions in which the record revealed evidence, direct or circumstantial, from which the trier of fact could reasonably credit the out of court statement(s). Franklin v. State, (1979) 270 Ind. 418, 420-21, 386 N.E.2d 668, 669-70; Moten v. State, (1978) 269 Ind. 309, 312-13, 380 N.E.2d 544, 546-47; Rogers v. State, (1978) 268 Ind. 370, 375-76, 375 N.E.2d 1089, 1091; Montgomery v. State, (1982) Ind.App., 439 N.E.2d 646, 648; Foor v. State, (1977) 172 Ind.App. 618, 622-23, 360 N.E.2d 1273, 1275-76; Lloyd v. State, (1975) 166 Ind.App. 248, 255, 335 N.E.2d 232, 237-38 (trans. denied).

We acknowledge that this is a close case. Although the victims explained the reason for their having lied--an ongoing conspiracy of some two years duration, fomented by their mother's brother, Donald, who bore a grudge against Defendant, we are, nevertheless, obligated to draw the inferences from the evidence in favor of the verdict, if such inferences may reasonably be drawn and despite any conflicts in the testimony or evidence.

Viewed in this light, the record discloses evidence from which the jury could have inferred flight. A social worker, Mrs. O'Daniel, testified that Mrs. Peckinpaugh had been made aware of a hearing upon a "Child in Need of Services" Petition which had been filed in response to the victims' reports. Shortly before the hearing, the Peckinpaugh family moved to Colorado. Mrs. Peckinpaugh claimed that she had thought that the hearing was for the purpose of obtaining counseling for the children, that she informed Mrs. O'Daniel of the move, and that she moved in hopes that Defendant, troubled by back problems and unemployed, would be able to find a job. While Defendant freely admitted his knowledge of the CHINS hearing, he testified that he was not going to allow a court to determine the custody of his children and that he had preceded the family to Colorado, in response to a favorable determination upon a job application. Mrs. Peckinpaugh also testified that Mrs. O'Daniel had stated that there would be no criminal prosecution, a fact which Mrs. O'Daniel denied, but which Defendant and his mother confirmed. Additionally, Defendant's mother's account of what Mrs. O'Daniel had stated about how the matter would be handled parallels his wife's understanding. Although Mrs. Peckinpaugh admitted that the family moved on July 13th or 14th, 1980, she denied that either the criminal information, filed July 10, 1980, concerning which she claimed she was unaware, or the hearing on the CHINS petition had motivated the departure.

The reason for this flight could have been the victims' change of heart, evidenced by their in court testimony and corroborated by letters each had written to the appropriate authorities after the family had settled in Colorado. Robin had written two letters, the first on August 14, 1980 and the second on January 5, 1981, and Robert had written two letters, the first on July 15, 1980 and the second on January 6, 1981. Through questioning, the Prosecutor attempted to imply that the parents had been able to influence the victims, but both testified that they had originated and written the exculpating letters, none of which had mentioned the conspiracy with their Uncle Donald. Robin also testified that she had discussed the case with her mother and Robert, but that they had not told her what to say.

Additionally, Mrs. Peckinpaugh admitted that Robin had complained about Defendant's behavior to her in 1978, although the witness did not remember the details and did not, then or ever, believe the accusation. She confirmed her brother's role in the alleged conspiracy and explained that she was fighting her brother for custody of his child, Jamie, whom she did not want to live with his father, a drunk and a drug addict.

Apparently Uncle Donald, currently sought by the FBI, had convinced Robin and Robert that, in turn for their cooperation in helping to...