Rickard v. State, 572A223

• Citation: 155 Ind.App. 189,291 N.E.2d 916
• Decision Date: 07 February 1973
• Docket Number: No. 572A223,572A223
• Parties: Ronald Elvis RICKARD, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 916

291 N.E.2d 916

155 Ind.App. 189

Ronald Elvis RICKARD, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 572A223.

Court of Appeals of Indiana, First District.

Feb. 7, 1973.

Stephen C. Haas, Evansville, for appellant.

Theo. L. Sendak, Atty. Gen., Robert F. Colker, Asst. Atty. Gen., for appellee.

LOWDERMILK, Judge.

Defendant-appellant was charged by affidavit in three counts in the Vanderburgh Circuit Court, with Count One being for Rape, Count Two being Harboring A Child Under The Age of Eighteen (18) Years, and Count Three, Contributing To The Delinquency Of A Minor.

Trial was had by jury, which returned its verdict finding the defendant-appellant guilty of the lesser included offense under Count One, to-wit; assault and battery with intent to commit a felony; guilty on Counts Two and Three as charged.

After pre-sentence investigation was filed the statutory sentence was passed by the court and all sentences were to run concurrently.

The motion to correct errors, together with memorandum attached thereto, was filed and overruled with the pertinent parts of the motion, omitting the memorandum, being in the words and figures as follows, to-wit:

'1. Uncorrected errors of law occurring and properly raised in the proceedings at trial, to-wit:

Overruling of the defendant's objection to any and all witnesses testifying in this case.

'2. Uncorrected errors of law occurring and properly raised in the proceedings at trial, to-wit:

Overruling the defendant's motion for an order from this court precluding the State from asking any questions concerning any sexual acts occurring prior to September 16, 17, and 18, 1971, in that this testimony would not be material and would be highly prejudicial to the defendant.

'3. Uncorrected errors of law occurring and properly raised in the proceedings at trial, to-wit:

Overruling defendant's Motion for Directed Verdict of Acquittal filed at the close of the evidence.'

The facts most favorable to the State are as follows:

The prosecuting witness was, on September 16, 1971, that being the date of the alleged offenses, 13 years of age. While her parents were gone, and she was at their home in Newburgh, Indiana, she went by taxi to Evansville where, pursuant to telephone arrangements, she met the defendant-appellant, who paid the cab fare. She stayed with defendant-appellant on September 16, 17, and 18, and during this period engaged in sexual intercourse with the defendant several times.

The defendant-appellant was 26 years of age and there is evidence that he had been told the age of the prosecuting witness by her half-sister prior to the time he had his first act of sexual intercourse with the prosecuting witness.

The first issue presented and argued by appellant is under specification one of the motion to correct errors and to which his contention is that the court erred in overruling the defendant's objection by any and all witnesses testifying in the case.

He contends that he filed a pre-trial motion which was sustained by the court and required the State, prior to trial, to give to defendant's counsel the names and addresses of all witnesses the State intended to use and rely upon in the prosecution of the cause. The State did not file a written answer to said pre-trial motion and now it is contended that the court erred in overruling the objection of the defendant-appellant.

To sustain this contention, appellant cites Bernard v. State (1967), 248 Ind. 688, 230 N.E.2d 536, in which case our Supreme Court held:

'Discovery may be provided for by statute, court rule or granted by the inherent power of the trial court. . . . While discovery in favor of the accused is not required by the constitutional guarantee of due process, Cicenia v. La Gay, 357 U.S. 504, 78 S.Ct. 1297, 2 L.Ed.2d 1523 (1958), it has been recognized that within the general nature of a trial court is the inherent power to order various types of discovery: discovery of the defendant's confession . . .; prior statements of a prosecuting witness which are inconsistent with his later testimony, . . . (Citations omitted.)'

Defendant-appellant relies further on the case of Johns v. State (1968), 251 Ind. 172, 240 N.E.2d 60, which holds that the State cannot mislead the defendant to conclude that the State intended to rely only on those witnesses whose names were endorsed on the back of the indictment and that for the State to do so would be a violation of due process of law as guaranteed by the Fifth and Fourteenth Amendments to the Constitution of the United States.

However, the facts of the Johns case are not applicable to the facts of the case at bar. In the case at bar all names of all witnesses were endorsed on the back of each count of the affidavit except the name of one Lana Gayle Schnell, who was a witness and whose name had been orally given to the defendant-appellant's counsel a week before the trial.

Defendant-appellant having knowledge for one week prior to trial that Lana Gayle Schnell probably would testify in the case had sufficient opportunity to interview her and determine what her evidence would be.

The case at bar is further distinguishable from the Johns case in that in the case at bar there was no surprise to the defendant-appellant and he cannot now be heard to complain. And, further, even though the State of Indiana did not comply strictly with the letter of the ordered discovery, no prejudice could be shown under Rule TR. 61, IC 1971, 34--5--1--1, Harmless Error.

The second issue presented and argued by defendant-appellant is under specification 2 of the motion to correct errors, and is the overruling of defendant's motion for an order from the trial court precluding the State from asking any questions concerning any sexual acts occurring prior to September 16, 17 and 18, 1971; and also the court's refusal to sustain defendant-appellant's objection to a question pertaining to acts of sexual intercourse occurring prior to said dates during the trial for the reason that the testimony would not be material and would be highly prejudicial to the defendant.

Defendant-appellant objected to Lana Gayle Schnell's testifying as to any prior sexual acts occurring prior to September 16, 17 and 18, 1971, for the reason such evidence was prejudicial to the defendant and not material to the issues.

The record discloses that Lana Gayle Schnell did not testify as to any acts of sexual intercourse at any time. She did testify that when she returned to her home where the prosecuting witness was baby sitting for her, the front door was locked and she knocked the rang the bell and it was five minutes before the prosecuting witness opened the door. At that time the prosecuting witness was fully clothed. There was a kitchen and bedroom at the back part of the house but Mrs. Schnell did not...