Shackelford v. State
| Decision Date | 22 November 1993 |
| Docket Number | No. 08A05-9302-CR-67,08A05-9302-CR-67 |
| Citation | 622 N.E.2d 1340 |
| Parties | Raymond L. SHACKELFORD, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Jessie A. Cook, Hellmann Cook & Alexander, Terre Haute, for appellant-defendant.
Pamela Carter, Atty. Gen., Cynthia L. Ploughe, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee-plaintiff.
Raymond L. Shackelford appeals his convictions of two counts of child molesting, Class B felonies, and two counts of incest, Class D felonies, raising the following issues:
1. Whether the trial court erred in admitting depraved sexual instinct evidence;
2. Whether the evidence is sufficient to support the the convictions of Counts II and IV; and
3. Whether the trial court erred in enhancing Shackelford's sentences on Counts I and II.
The charges against Shackelford arose from incidences occurring between August, 1990, and July, 1991, involving Shackelford's then seven-year-old grandson, J.S., and then five-year-old granddaughter, N.S. J.S. and N.S. stayed with Shackelford while Shackelford's daughter, the mother of J.S. and N.S., was in prison serving a one year sentence. During that time, Shackelford made J.S. perform fellatio on him and inserted his penis and his finger in J.S.' anus. Shackelford also touched and kissed N.S. on one of her "private parts" and made N.S. touch and kiss his "private parts."
Other facts will be presented as necessary.
Shackelford's daughter, the mother of J.S. and N.S., testified that Shackelford had molested her from the time she was eleven years old until she reached the age of fourteen or sixteen years. Shackelford objected to this evidence on the grounds that a proper foundation had not been laid for its admission. He did not object on the grounds that extrinsic offense evidence is generally not admissible. Shackelford now argues that in light of the Indiana Supreme Court's decision in Lannan v. State (1992), Ind., 600 N.E.2d 1334, the evidence showing a depraved sexual instinct was improperly admitted and he is entitled to a new trial. In Lannan, the court abolished the depraved sexual instinct exception to the general rule that evidence of extrinsic offenses is not admissible to prove that a defendant acted in conformity with a particular trait. Id. at 1339. Adopting Federal Rule of Evidence 404(b), the court noted that evidence of prior sexual misconduct would be admissible if it tended to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake. Id.
It is clear from reading the record in this case that the extrinsic evidence of Shackelford molesting his daughter was introduced only to show a depraved sexual instinct. It was not properly admitted to prove intent, identity, or for any of the other purposes set out in Fed.R.Evid. 404(b), because those were not at issue in this case. Thus, if the Lannan rule applies to Shackelford's case, the evidence was erroneously admitted and we would need to determine whether the error warranted a new trial.
The rule announced in Lannan is applicable to all cases pending on appeal at the time Lannan was decided and in which the issue was properly preserved by objecting to the evidence at trial. Ried v. State (1993), Ind., 615 N.E.2d 893; but see Ried v. State (1993), Ind.App., 610 N.E.2d 275, 281 (Barteau, J. dissenting). Lannan was decided after Shackelford's case was tried, but Shackelford did not make a proper objection at trial to preserve the issue. At trial, he objected to the admission of the evidence for lack of a sufficient foundation. He did not object to the admissibility of the evidence as evidence of prior misconduct. On appeal, a party is restricted to arguing the issues raised within the scope of the objection at trial. Chandler v. State (1991), Ind., 581 N.E.2d 1233. Because Shackelford did not properly preserve the issue at trial, he has waived any error with regard to admission of depraved sexual instinct evidence and is not entitled to the benefit of the Lannan decision.
Shackelford next raises the issue whether the evidence is sufficient to sustain his convictions of Counts II and IV, the offenses against N.S. Count II charged that Shackelford "performed deviate sexual contact [sic] with [N.S.], a child under the age of twelve years...." (R. 8). Count IV charged that Shackelford "engage[d] in deviate sexual contact [sic] with another person ... knowing said other person is related to [him] biologically as a grandchild." (R. 14). Shackelford argues that the evidence is not sufficient to prove he engaged in sexual deviate conduct with N.S.
Sexual deviate conduct is defined as "an act involving: (1) a sex organ of one person and the mouth or anus of another person; or (2) the penetration of the sex organ or anus of a person by an object." Ind.Code 35-41-1-9. Shackelford contends that there is no evidence of contact with N.S.' sex organ or anus, and no evidence that N.S. had contact with his sex organ. Review of insufficient evidence claims encompasses neither reweighing the evidence nor judging the credibility of witnesses. Rather, the appellate court will consider only the evidence most favorable to the verdict, and any inferences reasonably drawn therefrom. A verdict supported by substantial evidence of probative value will be affirmed. Pointer v. State (1992), Ind.App., 585 N.E.2d 33, 34.
The only evidence introduced to prove sexual deviate conduct was the testimony of N.S.:
Q. ... Can you tell me, [N.S.], what happened with your grandfather?
A. Yeah.
Q. Okay. Do you know what a pee pee is? Tell me what it is.
A. [No recorded response]
Q. Okay. Did you ever see your grandfather's pee pee?
A. [No recorded response]
Q. You have to answer out loud.
A. Yeah.
Q. Okay. Can you tell me how you happened to see it? Did grandpa do something with it?
A. Yeah.
Q. What'd he do? What'd he do, [N.S.]? What'd he do with his pee pee? [N.S.], can you--Can you point? Were you ever touched by his pee pee?
A. Yeah.
Q. Where? Where were you touched? Did you touch his pee pee? Did you touch it?
A. He made me. He made me touch it.
Q. And how did you touch it; with what part of your body?
A. My hands.
Q. Okay. Okay. Did you touch it with any other part of your body or did it touch--Did the pee pee touch you any place else?
A. Yeah.
Q. Where? Where'd it touch you, [N.S.]?
A. He touched me on one of my private parts.
Q. Okay. Tell me. Just point. Is it up here on your head? Private parts, are they on your head?
A. [No recorded response]
Q. You have to answer out loud.
A. No.
Q. No. Well show me where they are please. Just point. Are you pointing?
A. Here.
Q. And?
A. Right here. Right here.
Q. Okay.
[The record reflects that N.S. pointed to her breast area, her groin area, and her buttock area.]
Q. Did your grandfather--Did grandpa--Did he ever kiss you?
A. Yeah.
Q. Okay, and did that ever have anything to do with your private parts, when he kissed you?
A. Yeah.
Q. I didn't hear you.
A. Yeah.
Q. Yeah. Did he kiss you on your private parts?
A. Yeah.
Q. Okay. Did you ever kiss your grandpa?
A. Yeah.
Q. Did he have you kiss him?
A. Yeah.
Q. Where did you kiss him? Does your grandpa have private parts, too?
A. Yeah.
Q. Uh huh. Did you ever kiss him there?
A. Yeah.
Q. Okay.
(R. 420-423).
We agree with Shackelford that this evidence is insufficient to prove the occurrence of an act involving the sex organ of one person and the mouth or anus of another person. N.S. identified her "private parts" as the breasts, groin and buttocks. She also testified that Shackelford touched one of her private parts with his penis and that he kissed her private parts. However, she did not indicate which private part Shackelford touched. Thus, because N.S. included "breasts" in her identification of "private parts," there is no evidence here from which the jury could infer beyond a reasonable doubt that Shackelford engaged in an act involving his penis and N.S.' anus or an act involving his mouth and N.S.' genitalia or anus. Likewise, N.S. testified that she kissed Shackelford's private parts, but did not identify his "private parts" as his penis. Thus, there is no evidence from which the jury could infer that N.S. put her mouth on Shackelford's penis.
Clearly N.S.' testimony establishes inappropriate touchings by Shackelford and would be sufficient to sustain a charge of child molesting for fondling or touching pursuant to I.C. 35-42-4-3(b). However, the State charged Shackelford with child molesting for engaging in deviate sexual conduct pursuant to I.C. 35-42-4-3(a) and with incest for engaging in deviate sexual conduct pursuant to I.C. 35-46-1-3(a). In the absence of any evidence from which it can be inferred beyond a reasonable doubt that Shackelford engaged in conduct involving his mouth and N.S.' genitalia, his penis and N.S.' mouth or anus, or N.S. mouth and his penis, the convictions for child molesting and incest involving N.S. cannot stand.
Shackelford argues that the trial court did not give an adequate statement of its reasons for and considered improper aggravating circumstances in enhancing the presumptive sentences for Count I and Count II. Because we reverse Shackelford's conviction of Count II, we review only Shackelford's sentence on Count I. The trial court sentenced Shackelford to serve 15 years in prison on his conviction of child molesting, five years longer than the presumptive ten-year sentence.
When the trial court imposes an enhanced sentence, it is...
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