Reynolds v. State, 53A01-9008-CR-331

• Decision Date: 21 May 1991
• Docket Number: No. 53A01-9008-CR-331,53A01-9008-CR-331
• Parties: Thomas REYNOLDS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 430

573 N.E.2d 430

Thomas REYNOLDS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 53A01-9008-CR-331.

Court of Appeals of Indiana First District.

May 21, 1991.

Transfer Denied July 23, 1991.

Susan K. Carpenter, Public Defender, David P. Freund, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Louis E. Ransdell, Deputy Atty. Gen., Indianapolis, for appellee.

ROBERTSON, Judge.

Thomas Reynolds appeals his convictions after a jury trial for criminal recklessness, a class D felony, and criminal deviate conduct, a class B felony, for which he received concurrent sentences of two and twelve years respectively. He asserts that his convictions which rest upon repudiated Patterson statements are not supported by sufficient evidence. We agree and therefore reverse and remand with instructions that the trial court enter judgments of acquittal for both convictions.

FACTS

Reynolds' convictions arise out of two entirely unrelated incidents. Count I of the information alleged that Reynolds attempted to rape Sherry Yung by aiming a loaded handgun at her and demanding that she have sex with him. The trial court instructed the jury that they could find Reynolds guilty of the lesser included offense of criminal recklessness should they choose to acquit him of the charge of attempted rape. The jury acquitted Reynolds of attempted rape but convicted him of criminal recklessness. ¹

The facts in the light most favorable to the verdict with regard to the criminal recklessness conviction indicate that Yung never made a complaint against Reynolds. Yung had been arrested on unrelated charges and interrogated by the police regarding crimes allegedly committed by Donnie Reynolds, the defendant's brother and Yung's boyfriend. This interrogation--which was videotaped--produced the "bonus" of the present attempted rape allegation against Reynolds. During the police interrogation, Yung stated that Reynolds pointed a handgun at her and demanded sexual intercourse. In her statement, Yung indicated that she had no personal knowledge whether the gun was loaded or not but that an eyewitness to the incident, Steve Starbuck, had told her that the gun was loaded.

The videotaped interrogation was admitted at trial. However, Yung repudiated this statement at trial testifying that the incident occurred in the context of a joke and that she knew the gun was not loaded.

Count II alleged that Reynolds committed an act of criminal deviate conduct against Erin Jones. Jones had been interrogated by the police. The interrogation was recorded on video-tape and introduced at trial. During the interrogation, Jones stated--in effect--that Reynolds had inserted his finger into her vagina against her will. Jones repudiated this statement at trial testifying that she consented to the sexual activity. Jones testified that she had lied about the consensual nature of the sexual activity with Reynolds because she feared that her conduct could compromise her romantic relationship with Reynolds' brother, Ronnie.

Additional facts are supplied as necessary.

DECISION

In reviewing the sufficiency of the evidence, we consider the evidence most favorable to the verdict together with all reasonable inferences which may be drawn from that evidence and, if there is substantial evidence of probative value to support each element of the offense, the judgment will be affirmed. Fox v. State (1979), 179 Ind.App. 267, 384 N.E.2d 1159. The reviewing court neither weighs the evidence nor judges the credibility of the witnesses. Traxler v. State (1989), Ind.App., 538 N.E.2d 268. Substantive evidence of probative value, such as is necessary to support a conviction, has qualities of directness and freedom from uncertainty. Vuncannon v. State (1970), 254 Ind. 206, 258 N.E.2d 639. The function of an appellate court in a criminal appeal is to determine whether or not evidence of guilt is substantial and of probative value, which requires more than a mere scintilla of evidence. Id. Evidence which only tends to support a conclusion of guilt is insufficient to sustain a conviction, as evidence must support the conclusion of guilt beyond a reasonable doubt. Id.

The State concedes that both of Reynolds' convictions depend upon the sufficiency of the unsworn, repudiated, out-of-court statements made by the alleged victims in the video-taped police interrogations. Reynolds and the State agree that the video-taped police interrogations of both alleged victims were properly admitted at trial as substantive evidence under the authority of Patterson v. State (1975), 263 Ind. 55, 324 N.E.2d 482 because both witnesses admitted making the out-of-court statements, were present in court, and were available for cross-examination. Watkins v. State (1983), Ind., 446 N.E.2d 949. However, a conviction may not be predicated upon a repudiated Patterson statement unless there is also substantial evidence of probative value from which the trier of fact may reasonably infer that the out of court statements are credible. Peckinpaugh v. State (1983), Ind., 447 N.E.2d 576; James v. State (1985), Ind.App., 481 N.E.2d 417. A repudiated Patterson statement cannot be rendered credible by another repudiated Patterson statement or by the repudiated statement itself. Id; Laswell v. State (1986), Ind.App., 494 N.E.2d 981. To confer credibility upon a repudiated Patterson statement, independent evidence must be introduced which corroborates the repudiated Patterson evidence. Id.

In James, 481 N.E.2d 417, we reviewed the cases involving Peckinpaugh type evidence and compiled the following list describing the types of independent evidence that have been held to sufficiently confer credibility upon repudiated Patterson statements: excited utterances, eye witness accounts, the defendant's failure to respond to an accusation, defendant's flight, defendant's possession of stolen goods, the defendant's presence at the scene of the crime, incriminating admissions to third parties, and independent evidence of the corpus delicti. James v. State, 481 N.E.2d 417, 422. To add to this list, we note that in Roby v. State (1986), Ind., 495 N.E.2d 721, our supreme court held that the defendant's possession--near the time and place of the crime--of a very unusual and distinctive long black handgun, that broke down in the middle like a shotgun for loading, sufficiently corroborated repudiated Patterson statements when ballistic evidence indicated that the murder weapon, although never found, fit the above description. Also, in Riffel v. State (1990), Ind.App., 549 N.E.2d 1084, trans. denied, we held that a child victim's recanted accusations were rendered credible by corroboration with evidence that the child was infected with the same sexually transmitted disease as a person implicated in the child's statement further corroborated with expert medical testimony to the effect that the child could have contracted the disease in the manner described in the recanted statement.

Initially, the State argues that the rule of James, 481 N.E.2d 417, is too strict and should be "softened." The State urges that because the video-taped out-of-court statements at issue in this case were subject to critical examination by the jury, the statements themselves supply sufficient indicia of reliability to allow the jury to decide where the truth lies. Therefore, we should affirm Reynolds' convictions based upon the video-taped repudiated statements themselves.

We do not believe that exciting advances in technology should supplant the formality of sworn testimony in securing criminal convictions or further compromise the rights of confrontation and cross-examination. Moreover, we have rejected the State's request to relax the law in this area before. Although the rule of law in this area has often been characterized as the "James rule" and the James case is often cited for the rule of law about which the State complains, we believe the importance of the James decision is merited because of the quality, clarity, and eloquence of Judge Neal's written opinion and not because James departed from supreme court precedent. The James court--in rejecting a similar argument advanced by the State that the law in this area should be relaxed--held:

We construe the observation that Peckinpaugh was 'a close case', and the court's admonition that the State should use caution when utilizing such evidence, to mean that the Patterson rule was extended to its limit in Peckinpaugh.

481 N.E.2d at 423. We agree with James and will refrain from extending...