Shamblin v. State
| Decision Date | 19 August 2014 |
| Docket Number | No. 79A02-1311-CR-994,79A02-1311-CR-994 |
| Parties | ERIC T. SHAMBLIN, Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT:
CARLOS I. CARRILLO
GREGORY F. ZOELLER
Attorney General of Indiana
Deputy Attorney General
Indianapolis, Indiana
APPEAL FROM THE TIPPECANOE CIRCUIT COURT
The Honorable Donald L. Daniel, Judge
Eric Shamblin appeals his conviction for Class A felony attempted child molesting and the finding that he is a sexually violent predator. We affirm.
The issues before us are:
I. whether the trial court properly allowed the State to amend the charging information to add a more serious charge following Shamblin's first trial that resulted in a hung jury;
II. whether the trial court properly excluded exhibits tendered by Shamblin that purportedly were relevant to judging the victim's credibility;
III. whether there is sufficient evidence to support Shamblin's conviction; and
IV. whether the trial court properly found Shamblin to be a sexually violent predator.
In the fall of 2011, Shamblin was dating the mother of twelve-year-old J.T. One day in September or October 2011, Shamblin was babysitting J.T. Shamblin and J.T. were sitting on a couch together, watching television. At some point, Shamblin reached into J.T.'s shorts and attempted to put his finger inside of J.T.'s vagina. J.T. indicated that Shamblin was hurting her, and he stopped and apologized to her. Tr. p. 202. Shamblin later admitted to police that he was "curious" about what a twelve-year-old's vagina was like, but he denied having any sexual intent in attempting to put his finger inside J.T.'s vagina. Ex. 2.
On March 6, 2012, the State charged Shamblin with one count of Class C felony child molesting.1 The information specifically alleged that Shamblin had fondled J.T.'s genital area with his hand or finger. A jury trial eventually was scheduled for April 2, 2013. On March 14, 2013, the State filed a motion to add a charge of Class A felony attempted child molesting to the charging information. The new charge alleged that Shamblin had attempted to perform deviate sexual conduct on J.T. by trying to put his finger inside her vagina. In denying this motion and the State's motion to reconsider that denial, the trial court stated that the amendment would not permit Shamblin enough time to prepare for trial. The jury trial went ahead on April 2, 2013. It ended on April 3, 2013, with a deadlocked jury and the trial court's discharge of the jury.
On April 4, 2013, the State filed another motion to add the Class A felony attempted child molesting charge. On June 13, 2013, after conducting a hearing on the matter, the trial court allowed the addition of the Class A felony charge. A second jury trial was held on October 1-3, 2013. At its conclusion, the jury found Shamblin not guilty of Class C felony child molesting but guilty of Class A felony attempted child molesting. The trial court sentenced Shamblin accordingly and also entered a finding that he is a sexually violent predator. Shamblin now appeals.
Shamblin first contends the trial court erred in permitting the State to amend the charging information and add the Class A felony attempted child molesting count after his first trial ended with a deadlocked jury. Shamblin contends the amendment amounted to vindictiveness by the prosecutor. We disagree.
We review a trial court's decision to allow amendment of a charging information in the face of a claim of prosecutorial vindictiveness for an abuse of discretion. Johnson v. State, 959 N.E.2d 334, 342 (Ind. Ct. App. 2011), trans. denied. An abuse of discretion occurs if a decision is clearly against the logic and effect of the facts and circumstances before the trial court or if it has misinterpreted the law. Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013).
The Due Process Clause of the Fourteenth Amendment to the United States Constitution prohibits prosecutorial vindictiveness in charging decisions. Sisson v. State, 985 N.E.2d 1, 10 (Ind. Ct. App. 2012), trans. denied. In some cases, a presumption of vindictiveness may arise and actual vindictiveness need not be shown. Id. Generally, a presumption of vindictiveness may arise when the State adds more serious charges after a defendant successfully appeals a conviction, or successfully seeks and obtains a mistrial because of the violation of a defendant's statutory or constitutional rights during trial. See id. at 11.
Here, the State successfully moved to amend the charging information after Shamblin's first trial resulted in a hung jury. We squarely held in Sisson that a mistrial resulting from a hung jury is not the result of a defendant's exercise of a statutory or constitutional right and that there is no presumption of prosecutorial vindictiveness whenthe State adds charges to an information following a hung jury mistrial. Id. at 11-12; see also Harris v. State, 481 N.E.2d 382, 385-86 (Ind. 1985) (same). Sisson and Harris plainly apply to the facts here. The fact that Shamblin's first trial resulted in a hung jury placed no limitation on the State's ability to thereafter amend the charging information. Furthermore, we observe that the State's motion to amend after the first trial was precisely identical to its failed motion to amend before that trial. Amendment of an information before trial is presumptively valid and not vindictive. Johnson, 959 N.E.2d at 342. This was not a situation in which the State waited until after the first trial to add the new charge; it had previously attempted to do so and that attempt was presumptively valid.
Shamblin also argues that the State's amendment was in response to his refusal to plead guilty and to insist upon a jury trial. He notes that there was apparently no new evidence between the time of the original charging information and the later amendment that would explain why the State waited so long to add the new charge. The United States Supreme Court, however, has directly held that such facts do not establish the existence of prosecutorial vindictiveness in a charging decision. In Bordenkircher v. Hayes, 434 U.S. 357, 362, 98 S. Ct. 663, 667 (1978), the Court held that the government was not precluded from amending an indictment to add more serious charges after the defendant had refused to plead guilty, despite the fact that the prosecutor had not received any new evidence after the original indictment was filed. In U.S. v. Goodwin, 457 U.S. 368, 383, 102 S. Ct. 2485, 2493-94 (1982), the Court further held that there is no presumption of vindictiveness when a prosecutor adds more serious charges to an indictment after the defendant demands a jury trial. The Court observed:
A prosecutor should remain free before trial to exercise the broad discretion entrusted to him to determine the extent of the societal interest in prosecution. An initial decision should not freeze future conduct. As we made clear in Bordenkircher, the initial charges filed by a prosecutor may not reflect the extent to which an individual is legitimately subject to prosecution.
Goodwin, 457 U.S. at 382, 102 S. Ct. at 2493. Additionally, "[t]o presume that every case is complete at the time an initial charge is filed, however, is to presume that every prosecutor is infallible—an assumption that would ignore the practical restraints imposed by often limited prosecutorial resources." Id. at 382 n.14, 102 S. Ct. at 2493 n.14.
Applying Bordenkircher and Goodwin to this case, it is clear that no presumption of vindictiveness arises from the fact that Shamblin refused to plead guilty, that he did not waive insistence upon his right to a jury trial, and that the prosecutor's decision to seek addition of the Class A felony charge did not arise from any newly discovered evidence. Shamblin would not have been precluded from attempting to present some evidence that the amendment was actually motivated by vindictiveness. See id. at 384, 102 S. Ct. at 2494. There is no such evidence. As such, the trial court did not abuse its discretion in allowing the amendment.
Shamblin next challenges the trial court's exclusion of certain evidence proffered by him. Specifically, Shamblin wanted to introduce a child abuse report prepared by a Department of Child Services ("DCS") worker, in which the worker quoted J.T.'s mother as saying that J.T. "does not always tell the truth and that she makes a lot of things up." Ex. A (not admitted). The report also quoted school personnel describing J.T. as"manipulative and rude." Id. It also related J.T.'s diagnoses, as obtained from outside treatment records, of "Generalized Anxiety Disorder, Oppositional Defiant Disorder, and ADHD" and J.T.'s temporary residence in a "sexual maladaptive treatment resident facility." Id. The treatment was unrelated to Shamblin's actions. This report also substantiated that Shamblin had molested J.T.
Shamblin also wanted to introduce into evidence a deposition of another DCS caseworker, Regina Drummond, who had been involved with J.T. in matters unrelated to Shamblin. Drummond stated that "we assumed [J.T.], a lot of times, did not tell the truth," because things she said conflicted with things that her mother said. Ex. B, p. 9 (not admitted). However, Drummond could not recall specific occasions of J.T. directly being caught lying. Drummond also said that J.T. could be very difficult to deal with, mean-spirited, and retaliatory. Drummond mentioned an allegation, before Shamblin was accused of molesting J.T., that J.T. had been molested by an...
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