Ridenour v. State

• Citation: 639 N.E.2d 288
• Decision Date: 15 August 1994
• Docket Number: No. 29A04-9307-CR-268,29A04-9307-CR-268
• Parties: James RIDENOUR, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Court of Appeals of Indiana

Page 288

639 N.E.2d 288

James RIDENOUR, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 29A04-9307-CR-268.

Court of Appeals of Indiana Fourth District.

Aug. 15, 1994.

Timothy P. Alcorn, Christian, Waltz, White Klotz & Pfleging, Noblesville, for appellant.

Pamela Carter, Atty. Gen., Lisa M. Paunicka, Deputy Atty. Gen., Indianapolis, for appellee.

RATLIFF, Senior Judge.

STATEMENT OF THE CASE

James Ridenour appeals from his conviction of child molesting and battery.

We affirm.

ISSUES

I. Did Ridenour have a constitutional right to have an attorney present at his initial hearing?

II. Was Ridenour denied a fair trial because the jury overheard conversations between Ridenour and his trial counsel?

III. Was Ridenour denied a fair trial because the trial judge failed to question members of the jury regarding possible conversations with a juror who was excused during the pendency of the trial?

IV. Did the trial court err by admitting into evidence tape recorded statements of two of the victims?

V. Did the trial court err in imposing a ninety-two year sentence?

FACTS

Thirty year-old James Ridenour and his wife Diane lived together in Carmel, Indiana with their four children: D., J.R., J., and H. In October 1990, Diane reported to Susie Watson, a social worker for the Hamilton County Department of Welfare, that Ridenour had physically abused the children. Diane then questioned nine year-old D. as to whether her father had ever touched her improperly. D. responded affirmatively. Later, five year-old J. voluntarily told Diane that her father had touched her. Diane then reported these incidents to Susie who met with each of the four children individually on December 6, 1990, and she tape recorded the statements of D. and J. In the tape-recorded interview statements and at trial, both D. and J. described the sexual acts Ridenour performed upon them. D. described how Ridenour forced her to perform fellatio, sexual intercourse, and anal intercourse. Additionally, she stated that Ridenour licked her private parts. J. described how Ridenour placed his finger inside her.

At trial, where Ridenour neither testified nor presented witnesses, a jury convicted him of four counts of child molesting, a class B felony, ¹ against D., and one count of child molesting against J. He was also convicted of one count of battery, a class D felony, ² against J. Ridenour received an eighteen year sentence for each count of child molesting and a two year sentence for the battery count. The court also ordered that each sentence be served consecutively for a total of ninety-two years.

DECISION

I. INITIAL HEARING

At his initial hearing, held the day following his arrest, an attorney was appointed to represent Ridenour. The judge advised him of his rights and entered a preliminary plea of not guilty.

Ridenour now argues that his constitutional rights have been violated because he did not have an attorney present at the "arraignment." Specifically, he alleges he was prejudiced since he had "no opportunity to consult with counsel during the beginning stage of his case, facts, pertinent witnesses or right to defenses may have been forgotten or lost.... Appellant's Brief, p. 10. In support of his claim, Ridenour relies on Darmody v. State (1973), 156 Ind.App. 88, 294 N.E.2d 835, 839, wherein this court held that "[t]he law is now settled that at the arraignment, the accused has a constitutional right to the assistance of counsel."

However, Ridenour's reliance is misplaced because he incorrectly characterizes the hearing he attended as an "arraignment," when, in fact, it was an initial hearing.

Arraignment, under the prior statutory scheme, was construed as a crucial step in the course of criminal proceedings since it was at that juncture that the accused heard the formal charge and was called upon to enter his plea. Rader v. State (1979), 181 Ind.App. 546, 550, 393 N.E.2d 199, 202. However, under the new scheme, there is no technical arraignment hearing. Johnson, Criminal Law and Procedure, 16 Ind.L.Rev. 119, 132 (1983). Instead a defendant is advised of the charge against him at the initial hearing and an automatic not guilty plea is entered on his behalf. The preliminary not guilty plea becomes a formal plea of not guilty twenty (20) days after completion of the initial hearing if the crime charged is a felony.

Hayre v. State (1986), Ind.App., 495 N.E.2d 550, 552. Thus, an initial hearing is not a critical stage of the process requiring presence of counsel, Benner v. State (1991), Ind., 580 N.E.2d 210, 212, and, therefore, Ridenour's constitutional right to counsel was not violated. Neither has he demonstrated prejudice. Upon proof of his indigency, the judge appointed counsel and further entered a preliminary plea of not guilty. Ridenour was not called upon to use his discretion or to make any type of decision that would require an attorney's advice.

II. WAS RIDENOUR DENIED A FAIR TRIAL BECAUSE THE JURY OVERHEARD CONVERSATIONS BETWEEN RIDENOUR AND HIS COUNSEL?

Ridenour's allegation that he was denied a fair trial rests on the following assertion: "The trial court and counsel were informed by the bailiff that members of the jury could overhear conversations between Defendant and his counsel." Appellant's Brief p. 7. He makes no citation to the record, and, after an exhaustive search of the record, we are unable to locate any communication by the bailiff to either the trial court or counsel indicating that the jury overheard conversations between Ridenour and his attorney. Thus, it is impossible to ascertain whether Ridenour was denied a fair trial, and, in any case, bare assertions of error not disclosed by the record are not available for review. Wray v. State (1989), Ind., 547 N.E.2d 1062, 1068.

III. WAS RIDENOUR DENIED A FAIR TRIAL BECAUSE THE TRIAL COURT FAILED TO QUESTION JURORS REGARDING CONVERSATIONS THEY MAY HAVE HAD WITH AN EXCUSED JUROR?

Before the trial began on the third day, Juror Brown privately revealed to the judge her concern that she was biased in favor of the State. Out of the presence of the jury, she was then questioned by the prosecutor and Ridenour's attorney concerning her ability to serve as an impartial juror. Her testimony revealed that the girls' testimony the previous day had reminded her of an incident of child molestation that had occurred in her family. Although she was disturbed, Brown felt she could remain impartial until she received a phone call that night from her daughter who related an unsettling incident. She testified that because she was unable to discuss the dilemma with anyone, she was awake nearly all night and by the next morning had concluded that she was unable to remain impartial. Thereafter, Ridenour moved to excuse Juror Brown and to seat the alternate juror. The State had no objection and the trial court granted Ridenour's motion. Before trial commenced that day, the trial court admonished the jury as follows:

Ladies and gentlemen, the Court has excused Mrs. Brown from the jury and Mr. Barta will move from the alternate juror to be one of the twelve jurors. You should not speculate on this situation. It should have no impact whatsoever or be discussed in your deliberations.

R. 1008.

Ridenour now argues he was denied a fair trial because the trial court failed to interrogate the remaining jurors to determine whether they were exposed to prejudice through conversations they may have had with Juror Brown concerning her experiences.

In Lindsey v. State (1973), 260 Ind. 351, 295 N.E.2d 819, our Supreme Court enunciated the procedure a trial court must follow when a jury has potentially been exposed to prejudicial publicity during trial. While Lindsey involved factually incorrect newspaper articles published during trial, the Lindsey procedure has been applied to a variety of situations where potentially improper juror influence exists. See Conn v. State (1989), Ind., 535 N.E.2d 1176 (insurance claim for medicines carrying juror's name brought to trial court's attention during trial for delivery of a controlled substance); Gee v. State (1979), 271 Ind. 28, 389 N.E.2d 303 (juror's conversation on a public telephone during trial recess); Bruce v. State (1978), 268 Ind. 180, 375 N.E.2d 1042, cert. denied. (audience discussion overheard by jurors); Daniels v. State (1976), 264 Ind. 490, 346 N.E.2d 566 (juror's wife threatened by victim's mother).

The Lindsey procedure provides in pertinent part:

Upon a suggestion of improper and prejudicial publicity, the trial court should make a determination as to the likelihood of resulting prejudice, both upon the basis of content of the publication and the likelihood of its having come to the attention of any juror. If the risk of prejudice appears substantial, as opposed to imaginary or remote only, the court should interrogate the jury collectively to determine who, if any, has been exposed. If there has been no exposure, the court should instruct upon the hazards of such exposure and the necessity for avoiding exposure to out-of-court comment concerning the case. If any of the jurors have been exposed, he must be individually interrogated by the court outside the presence of the other jurors, to determine the degree of exposure and the likely effect thereof. After each juror is so interrogated, he should be individually admonished. After all exposed jurors have been interrogated and admonished, the jury should be assembled and collectively admonished, as in the case of a finding of 'no exposure.' If the imperiled party deems such action insufficient to remove the peril, he should move for a mistrial.

Lindsey, supra 295 N.E.2d at 824 (emphasis added). The court is required to act only if there has been presented some basis for a reasonable belief that one or more of the jurors has been exposed to potentially harmful publicity. Jarvis v. State (1982), Ind., 441 N.E.2d 1, 7. The court is not required to...