Pedrick v. State

• Decision Date: 16 June 1992
• Docket Number: No. 49A05-9108-CR-270,49A05-9108-CR-270
• Citation: 593 N.E.2d 1213
• Parties: Charles D. PEDRICK, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 1213

593 N.E.2d 1213

Charles D. PEDRICK, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A05-9108-CR-270.

Court of Appeals of Indiana Fifth District.

June 16, 1992.

Rehearing Denied Aug. 5, 1992.

Richard Kammen, Katharine C. Liell, Susan W. Brooks, McClure, McClure & Kammen, Indianapolis, for appellant-defendant.

Linley E. Pearson, Atty. Gen., Lisa M. Paunicka, Arthur Thaddeus Perry, Deputy Attys. Gen., Indianapolis, for appellee-plaintiff.

RUCKER, Judge.

A jury convicted Charles D. Pedrick of five counts of child molesting, as Class C felonies. ¹ Pedrick now appeals his convictions, raising five issues for our review which we rephrase and reorder as follows:

1) Did the trial court err in refusing to give Pedrick's tendered instructions on battery as a lesser included offense?

2) Did the trial court err in refusing to allow Pedrick's expert witness to testify?

3) Did the trial court err in refusing to give Pedrick's tendered instruction concerning the determination of the credibility of a child witness?

4) Did the trial court err in refusing to allow Pedrick to testify concerning the State's original charges of battery?

5) Was the evidence sufficient to sustain the convictions?

We reverse and remand. ²

On April 28, 1989, Pedrick was working as a substitute teacher at an elementary school in Indianapolis, Indiana. On that day Pedrick's responsibilities included teaching fourth and fifth-grade physical education classes.

After a relay race, Pedrick patted N.C. on her posterior, said "good job," and also patted and rubbed her chest. Pedrick also placed both hands on the hips of S.W., telling her she had done well in the last relay race. Pedrick put his arm over the shoulder of K.L. and touched her breast, but she jerked away. Later, Pedrick approached K.L. again and began tickling her stomach. As Pedrick's hands began to move down her stomach toward her vagina, K.L. quickly sat down.

While standing near the classroom closets Pedrick said "good job" to A.C., put his arm around her, and patted and rubbed her breast. During class, Pedrick put his arm around the shoulder of M.M. and let his hand hang, touching her breast. M.M. then backed away from Pedrick. Also during class, Pedrick put his hand up the shirt After an investigation of the foregoing conduct, the State initially brought charges against Pedrick for battery as Class B misdemeanors pursuant to Ind.Code Sec. 35-42-2-1. These charges were dismissed shortly thereafter. Based on the same conduct underlying the battery charges, the State then filed the information in this case charging Pedrick with six counts of child molesting concerning K.L., E.J., M.M., S.W., A.C., and N.C. No charges were filed based on the conduct with A.H.

sleeve of A.H. and pinched her shoulder. Pedrick also placed his hand on the shoulder of E.J. and then on her breast.

At trial, the State made an oral motion in limine, requesting the trial court to order that no reference be made to the prior battery charges, and the motion was granted. During the trial the State offered into evidence the notes of the principal of the school where the incidents took place. In those notes was a reference to unspecified battery charges and Pedrick later brought this fact to the attention of the trial court. At that time Pedrick requested an opportunity to present evidence concerning the original battery charges and the trial court denied the request.

In his case-in-chief, Pedrick offered the testimony of Dr. Elizabeth Loftus, a psychologist who specializes in the study of human memory and the influence of post-event questioning of witnesses on their subsequent recall and interpretation of events. The trial court did not permit Dr. Loftus to testify. Pedrick tendered jury instructions which instructed the jury on battery as a lesser included offense of child molesting. The trial court rejected the instructions. Pedrick also tendered an instruction which advised the jury on special problems concerning the credibility of child witness testimony. This instruction was also refused.

The jury convicted Pedrick of five counts of child molesting concerning K.L., E.J., M.M., A.C., and N.C. This appeal ensued. Additional facts will be discussed below where relevant.

I.

Pedrick contends the trial court erred in rejecting his tendered Instructions Nos. 2 and 3. Instruction No. 2 defined the term "included offense" and Instruction No. 3 informed the jury that if it found Pedrick not guilty of child molesting then it must next determine if the State proved the lesser included offense of battery as a class B misdemeanor. The trial court rejected Pedrick's tendered instructions, holding the evidence presented at trial was not consistent with an allegation that Pedrick had committed battery on the children.

The test for determining whether the trial court erred in refusing an instruction of a lesser included offense is a matter of well-settled law in Indiana:

1) whether the language of the statute and the charging document necessarily included the lesser offense in the greater, and 2) whether evidence was introduced at trial to which the included offense was applicable. [ ]. The evidence must be subject to the interpretation not only that the lesser offense was committed, but also that the greater offense was not. [ ].

Altmeyer v. State (1988), Ind., 519 N.E.2d 138, 141 (citations omitted).

Thus, a two step inquiry is applied to determine whether an instruction on a lesser included offense shall be given. First we determine whether the lesser offense is inherently or factually included in the greater offense by looking at the statutes and the charging document. Therefore, on the one hand an offense is a lesser included one if all the statutory elements of the lesser offense are part of the statutory definition of the greater offense. Aschliman v. State (1992), Ind., 589 N.E.2d 1160, citing Chanley v. State (1991), Ind., 583 N.E.2d 126, 130. Alternatively, an offense is a lesser included one if the charging document reveals that the manner and means used to commit the essential elements of the charged offense include all of the elements of the lesser offense. Jones v. State (1988), Ind., 519 N.E.2d 1233.

The second step of the test requires a determination of whether there was evidence In this case battery as a class B misdemeanor is a lesser included offense of child molesting as charged by the State. The statute under which Pedrick was charged dictates in pertinent part:

                before the jury such that it could conclude the lesser included offense was committed while the greater one was not.  Aschliman, supra.   There must be a serious evidentiary dispute with respect to the element which distinguishes the greater offense from the lesser offense.  Id
                

A person who, with a child under twelve (12) years of age, performs or submits to any fondling or touching, of either the child or the older person, with intent to arouse or to satisfy the sexual desires of either the child or the older person, commits child molesting, a Class C felony.

Ind.Code Sec. 35-42-4-3(b). The statute defining battery provides:

A person who knowingly or intentionally touches another person in a rude, insolent, or angry manner commits battery, a Class B misdemeanor.

Ind.Code Sec. 35-42-2-1.

Battery is not an inherently included offense of child molesting because it is possible to commit the latter crime solely by submitting to a touch rather than performing one. However the charging information in this case does allege that Pedrick performed or submitted to touching or fondling of the children in order to arouse or satisfy his sexual desires. The information therefore contains the elements of battery as a lesser offense. Accord Johnson v. State (1984), Ind., 464 N.E.2d 1309 (elements of battery were alleged in information charging attempted murder where element of substantial step toward murder in information alleged a touching). The element which distinguishes child molesting from battery is whether the touching is performed with an intent to arouse or satisfy sexual desires. Hopper v. State (1986), Ind.App., 489 N.E.2d 1209, cert. denied, (1986) 479 U.S. 992, 107 S.Ct. 592, 93 L.Ed.2d 593.

Pedrick contends there was a serious dispute in the evidence with respect to whether his touching of the children was performed with a sexual intent. Pedrick points out it was undisputed at trial that he had touched the children; his sole defense was that the touches were not intended to be sexual. Pedrick asserts the jury could have reasonably inferred his touches were rude and insolent but not sexual, and therefore argues the trial court's refusal to give his proffered instructions was error.

The State contends that an instruction on battery would not have conformed to the evidence presented at trial. The State argues the evidence compels a conclusion that Pedrick was either guilty of child molesting or no crime at all. We disagree.

The facts of the present case are quite unlike those of Brackens v. State (1985), Ind., 480 N.E.2d 536, where the victim had alleged sexual molestation and the defendant denied even having touched the victim the day of the offense. In that case our supreme court held that an instruction for battery as a lesser-included offense of child molesting was properly refused because it would have been inconsistent with the evidence presented by both the State and the defense. In that instance the evidence was not subject to the interpretation that the lesser offense was committed but the greater was not. Such is not the case here.

Even though, as we discuss below, there was sufficient evidence for the jury to find Pedrick guilty of child molesting, the evidence does not rule out the existence of a serious evidentiary dispute on the issue of Pedrick's intent. ³ Under the present evidence reasonable minds could have concluded Pedrick touched the children in a rude or insolent...