Smith v. State

• Decision Date: 19 September 1989
• Docket Number: No. 41S00-8607-CR-700,41S00-8607-CR-700
• Citation: 543 N.E.2d 634
• Parties: David Lynn SMITH, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 634

543 N.E.2d 634

David Lynn SMITH, Appellant, v. STATE of Indiana, Appellee.

No. 41S00-8607-CR-700.

Supreme Court of Indiana.

Sept. 19, 1989.

Susan K. Carpenter, Public Defender, June D. Oldham, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Joseph N. Stevenson, Deputy Atty. Gen., Indianapolis, for appellee.

PER CURIAM.

Appellant was tried by jury on an information which charged him in Count I with child molesting, a Class C felony. I.C. 35-42-4-3(c). A verdict of guilty as charged was rendered. He was also tried by jury on Count II which alleged that he was a habitual offender. An affirmative verdict was rendered on Count II. The trial court enhanced the basic five-year sentence by an additional three years, and then enhanced that initial maximum eight years by an additional thirty years due to the habitual offender status, I.C. 35-50-2-6; I.C. 35- 50-2-8, making the total sentence thirty-eight years.

The gravamen of the charged offense was that appellant had sexual intercourse with his daughter in September 1985 when she was fourteen years of age. The gravamen of the habitual offender count was a 1975 conviction for aggravated assault and battery and a 1985 conviction for theft.

The first appellate claim is that the evidence serving to prove that sexual intercourse occurred is insufficient. Expressly, the proof of penetration is challenged. In resolving this question we do not weigh the evidence nor resolve questions of credibility but look to the evidence and reasonable inferences therefrom which support the verdict. The conviction will be reversed if, from that viewpoint, there is no evidence of probative value from which a reasonable trier of fact could infer guilt beyond a reasonable doubt. Smith v. State (1970), 254 Ind. 401, 260 N.E.2d 558; Glover v. State (1970), 253 Ind. 536, 255 N.E.2d 657.

The evidence includes the testimony of the daughter who said that she was, on a Monday or Wednesday in September 1985, a school day, upon returning home, approached by her father. He fondled her, placed her on a bed, climbed on top of her, and put his sex organ in her vagina. She testified that she could feel it move inside, and told him at the time that it hurt; whereupon he replied that she should relax and it would not hurt. This was a complete and graphic description of sexual intercourse including vaginal penetration by a male. Appellant's testimony that the external area surrounding the vagina was only touched created a conflict in the evidence for the trier of fact to resolve. Despite that conflict, the evidence is clearly sufficient on appeal.

Appellant's second appellate claim is that the evidence was insufficient to prove the allegations of Count II, namely that he had accumulated two prior unrelated felony convictions. Specifically, appellant points out that in the separate hearing on habitual offender status, the trial prosecutor did not formally reintroduce the evidence offered at the trial on the molesting charge, and now contends that in the absence of the incorporation of such proof at the second phase hearing, the evidence is insufficient to support the verdict on Count II.

The State's burden in the habitual offender phase of a felony trial is to prove beyond a reasonable doubt that the defendant has accumulated two prior unrelated felonies. Williams v. State (1981), 275 Ind. 603, 419 N.E.2d 134. Of course, the defendant must have committed the first and been sentenced for it before he commits and is sentenced for the second and the second sentencing must have preceded the commission of the offense of which he was found guilty in the first part of the trial. Clearly the State must introduce evidence during the habitual proceeding to prove the two priors. On the other hand, the jury hearing the habitual evidence already knows when the defendant committed the crime of which it has just found him guilty. The statute does not require the State to reprove that fact a second time to the same jurors. If a different jury heard the habitual part of the trial, of course, proof would be necessary. As for a related issue concerning the habitual proceeding, five days before trial the State filed notice that it would seek to have Smith declared a habitual offender. Appellant also alleges error in the trial court's denial of his motion for continuance. Such a denial may be grounds for reversal when the State's late filing prejudices the substantial rights of the defendant. Radford v. State (1984), Ind., 468 N.E.2d 219. Beyond asserting generally, and inadequately that the shortness of time prevented him from raising "any of the legally allowable defenses," Smith suggests he needed more time to challenge the facial invalidity of the evidence of prior convictions. Such facial invalidity, of course, may be established, if at all, by simple inspection of the State's exhibits. We are not persuaded that the trial court erred when five days were available to conduct that inspection.

Appellant next contends that the court committed error when permitting the daughter to describe sexual contact with him occurring prior to the charged event and in considering such uncharged prior sexual contact as aggravation when sentencing. At trial, the daughter was permitted, over objection, to describe oral and anal sexual contact which she had with appellant during a four-year period preceding the charged intercourse. Such evidence is admissible at trial on such charges to show a continuing plan to exploit and sexually abuse a child, an exception to the general rule against admitting evidence of prior, separate, independent and distinct crimes not charged. Clifford v. State (1985), Ind., 474 N.E.2d 963. Likewise, the fact that a party has engaged in molesting a child over a long period of time, while not one of the factors enumerated by statute as an aggravating factor, may properly be considered as one. Kelly v....