Roberts v. State

• Citation: 712 N.E.2d 23
• Decision Date: 30 June 1999
• Docket Number: No. 47A01-9804-CR-152.,47A01-9804-CR-152.
• Parties: Guy ROBERTS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

712 N.E.2d 23

Guy ROBERTS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 47A01-9804-CR-152.

Court of Appeals of Indiana.

June 30, 1999.

Transfer Denied August 31, 1999.

Susan K. Carpenter, Public Defender of Indiana, Gregory L. Lewis, Deputy Public Defender, Indianapolis, Indiana, Attorneys for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, Rosemary Borek, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

OPINION

BROOK, Judge

Case Summary

Appellant-defendant Guy Roberts ("Roberts") appeals from his convictions for rape as a Class B felony, two counts of child molesting as Class C felonies, and child molesting as a Class D felony.

Facts and Procedural History

The facts most favorable to the judgment indicate that Roberts lived with Donna Sykes ("Sykes") and her two children, M.G. and S.G., in Bedford, Indiana, from October 1991 until June 1992. In May 1992, M.G., who was 12 years old, stayed home from school because she was ill. While M.G. lay on the couch in the living room watching television, Roberts approached her. He knelt on the floor beside M.G., touched her breasts, tried to kiss her, and tried to put his hands down her pants. As they struggled on the couch, M.G. told Roberts to leave her alone; he refused. She then kicked him and again told him to leave her alone. Because M.G. resisted his advances, Roberts retreated and started calling her names, such as "whore" and "slut."

Roberts returned to the couch, grabbed M.G. by her arms, and threw her onto the floor. Roberts then got on the floor with M.G. and removed her clothing. Holding her arms down to prevent her escape, Roberts forced M.G. to engage in sexual intercourse. After the attack, he threatened to kill her if she told Sykes what had happened. Also, on a separate occasion, in May 1992, Roberts entered M.G.'s bedroom while she slept and awakened her. When M.G. awoke, she discovered Roberts touching her breasts and putting his hand down her underpants. She told him to leave her alone and get out of her bedroom; he complied. M.G. never reported either of these incidents to her mother or anyone else because she was embarrassed and afraid that Roberts would harm her.

In June 1992, when Roberts and Sykes ended their relationship, Roberts moved out of the house. On June 23, 1992, M.G. told her mother that Roberts had gotten into her bed and touched her breasts and inserted his fingers into her vagina. On June 24, 1992, Sykes took M.G. to the Lawrence County Welfare Department ("Welfare Department") to report the incident. Although M.G. reported that Roberts had touched her, she did not inform them that she had been raped. After the Welfare Department took their report, M.G. was sent to Dr. Mike Borhan ("Dr.Borhan") to receive a pelvic examination. She told Dr. Borhan that Roberts had inserted his fingers into her vagina, but denied any penile penetration.

On July 8, 1992, the State filed an information against Roberts for child molesting as a Class C felony, alleging that he had performed sexual deviate conduct upon M.G. On July 10, 1992, Deputy Kathy Robinson ("Deputy Robinson") of the Lawrence County Sheriff's Department interviewed M.G. on videotape. M.G. repeated her allegations that Roberts had touched her, but denied that Roberts had sexual intercourse with her. M.G. reported that Roberts had touched her on two separate occasions: once on the living room couch when he allegedly inserted his finger into her vagina, touched her breasts, and tried to kiss her; and once in her bedroom when he allegedly touched her breasts. On March 5, 1993, the State filed an amended information that added another charge of child molesting as a Class D felony, alleging that Roberts had fondled M.G. with the intent to arouse or satisfy his sexual desires. On October 30,1995, the State again requested leave to amend the information to add eight other allegations of child molesting involving a different victim, which was granted on December 1, 1995.¹

While these charges were still pending, Roberts failed to appear for a pretrial conference on December 20, 1995. As a result, the court issued a bench warrant for Roberts' arrest. The trial court took no further action on this matter until Roberts was apprehended in Canton, Georgia, and returned to Indiana on February 28, 1997. On May 30, 1997, the trial court set the date for a jury trial on November 5,1997.

On July 3, 1997, M.G. disclosed for the first time that Roberts had raped her in May 1992. On July 9, 1997, the State moved to amend the information previously filed to add a count of rape and another count of child molesting for this alleged act of sexual intercourse. The trial court granted the State's motion to amend. The amended information read as follows: Count I, Rape as a Class B felony; Count II, Child Molesting as a Class C felony for sexual intercourse with M.G.; Count III, Child Molesting as a Class C felony for sexual deviate conduct; and Count IV, Child Molesting as a Class D felony for fondling M.G. with the intent to arouse or satisfy his sexual desires. On July 18, 1997, the State filed another amended information that added a count regarding Roberts' failure to appear.

On August 14, 1997, Roberts filed a motion to dismiss the rape and Count II child molesting charges of the amended information. Roberts argued that the rape and child molesting charges were time barred because they were filed after the expiration of the five-year statute of limitation. The trial court denied Roberts' motion to dismiss, ruling that his absence from Indiana had tolled the period of limitation.

On November 5, 1997, a jury trial commenced. At the end of the State's case-in-chief, Roberts again moved to have the rape and child molesting charges dismissed because they were filed after the five-year statute of limitation had expired; the trial court denied this motion. During Roberts' direct examination of Deputy Robinson, he offered into evidence the July 10, 1992, videotaped interview of M.G., during which she had denied that Roberts had sexual intercourse with her. The trial court excluded the videotape, reasoning that M.G. had already admitted making the inconsistent statements; therefore, the videotape was not admissible.

Roberts testified in his own defense. During his cross-examination, the prosecutor elicited testimony, without defense objection, about the techniques Roberts had used to slaughter cows at the butcher shop where he worked. The prosecutor then asked him whether he had ever killed any animals in front of M.G. and her sister. The defense objected to this line of questioning. The trial court sustained Roberts' objection; however, Roberts did not request a mistrial or ask for an admonishment to the jury.

During jury deliberations, the jury sent a note to the court requesting to view Roberts' employment calendar, a copy of Dr. Borhan's testimony, and Dr. Borhan's medical chart. Because Dr. Borhan's testimony had not yet been transcribed and the medical chart had never been admitted into evidence, the trial court proposed sending Roberts' employment calendar and M.G.'s school attendance records to the jury, without otherwise responding to the request. Roberts' objection to sending this information to the jury was overruled by the trial court. After overruling the objection, the trial court asked the parties whether the two exhibits should be shown to the jurors in open court or if the bailiff should take them into the jury room. Both parties consented to the exhibits being taken to the jury room.

On November 6, 1997, the jury returned a guilty verdict for all four counts. The trial court sentenced Roberts to consecutive sentences of twenty years for rape; eight years for each child molesting charge as a Class C felony; and four years for the child molesting charge as a Class D felony.

Issues

Roberts raises four issues for our review, which we rephrase as follows:

(1) whether Roberts' convictions for rape and child molesting arising out of the same act of sexual intercourse constitute double jeopardy in violation of the Fifth and Fourteenth Amendments to the United States Constitution and Article I § 14 of the Indiana Constitution;

(2) whether Roberts' convictions for rape and child molesting are barred pursuant to Indiana's five-year statute of limitation as set forth in IND. CODE § 35-41-4-2;

(3) whether the trial court erred in excluding a videotaped interview of the victim during which she denied having sexual intercourse with Roberts; and

(4) whether Roberts was denied effective assistance of trial counsel.

Discussion and Decision

I. Federal and Indiana Double Jeopardy Standards

First, Roberts argues that the trial court violated the double jeopardy prohibitions of the Fifth Amendment of the United States Constitution² and Article I § 14 of the Indiana Constitution. Double jeopardy protects "against successive prosecutions following conviction, reprosecution after acquittal, and multiple punishments for the same offense." Games v. State, 684 N.E.2d 466, 479 (Ind.1997), opinion modified on other grounds, 690 N.E.2d 211 (Ind.1997), cert. denied, ___ U.S.___, 119 S.Ct. 98, 142 L.Ed.2d 78 (1998), citing North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). Roberts contends that his convictions for the rape and Count II child molesting charges violate the prohibition against multiple punishments for the same offense because they arose from the same act of sexual intercourse.

The analyses for double jeopardy claims arising under both the Indiana and United States Constitutions were the same until recently. However, in both Games and Grinstead v. State, 684 N.E.2d 482 (Ind.1997), our supreme court recognized that the previous interpretation of the federal double jeopardy clause, which looked beyond the statutory elements, had changed and that the proper test to determine whether double jeopardy had been...