State v. Barry Chandler, No. 49A05-9601-CR-35

Docket NºNo. 49A05-9601-CR-35
Citation673 N.E.2d 482
Case DateNovember 12, 1996
CourtCourt of Appeals of Indiana

Page 482

673 N.E.2d 482
STATE of Indiana, Appellant-Plaintiff,
v.
Barry CHANDLER, Appellee-Defendant.
No. 49A05-9601-CR-35.
Court of Appeals of Indiana.
Nov. 12, 1996.

Pamela Carter, Attorney General, Lisa M. Paunicka, Deputy Attorney General, Indianapolis, for Appellant-Plaintiff.

OPINION

FRIEDLANDER, Judge.

Upon interlocutory appeal, the State challenges the trial court's setting aside of a jury verdict finding Barry Chandler guilty of child molesting, a class B felony. The State presents the following restated issue for review:

Did the trial court err in setting aside the guilty verdict on the basis that the court refused to grant the jury's request during deliberations to view anatomical drawings that had been admitted into evidence?

We reverse and remand.

Chandler was charged with molesting A.W., a six-year-old girl. Chandler had been married to A.W.'s mother but the two were divorced when the alleged molestation occurred. According to A.W., on an overnight visit to Chandler's house, she was awakened by Chandler when he placed his hand over her mouth. Chandler then disrobed, removed some of A.W.'s clothing, and forcibly performed sexual intercourse upon A.W. Afterwards, Chandler warned A.W. not to tell anyone what had happened or he would harm A.W.'s mother and sister.

A.W. eventually reported the incident to a babysitter, saying that a man "had touched her in a wrong way." Record at 345. The babysitter notified A.W.'s grandmother and the grandmother contacted the police. The police questioned Chandler, who denied any wrongdoing. After an investigation, Chandler was charged with child molesting and the case proceeded to a jury trial. The State presented several witnesses, including A.W., her grandmother, and the babysitter. The State also presented the testimony of Dr. Roberta Ann Hibbard, a pediatrician who

Page 483

examined A.W. after the alleged molestation occurred.

During Dr. Hibbard's testimony, the State introduced Exhibits 1 and 2, charts depicting female genitalia from different angles. The charts were introduced for demonstrative purposes and Dr. Hibbard referred to the charts while describing female genitalia generally and A.W.'s genitalia specifically. When asked to describe the results of A.W.'s examination and her conclusions, Dr. Hibbard testified:

For a child of this age, uh, and actually for a child, almost any child who is yet still prepubertal, before they have gone though puberty and are having periods, we consider the upper limits of normal [for the hymenal opening] to be 9 to 10 millimeters, and I say 9 to 10, because if you look at a 7-year-old, the absolute number is going to be, you know, 8.7, and if you look at an 8-year-old, it's 9.2, and if you look at a 9-year-old it's ... I personally use the limit of 10 millimeters, to give us a little bit of leeway, because there could be varying degrees of relaxation.

Record at 291. Dr. Hibbard then testified that A.W.'s hymenal opening measured thirteen millimeters. According to Dr. Hibbard, a thirteen-millimeter opening was "well beyond ... the normal range for a child of [A.W.'s] age," id. at 292, and was "suspicious for sexual abuse." Id. at 294-95.

After beginning its deliberations, the jury sent the following note to the court: "Could we please have medical drawings and a ruler?" Id. at 89. After receiving the note, the court summoned counsel and Chandler back into court, and the following colloquy ensued:

THE COURT: All right, Mrs. Hillenburg [the prosecuting attorney] any suggested response?

MRS. HILLENBURG: No, I think the Court's response, re-reading the instructions is ... complies with the law, and should get them back on the track.

THE COURT: Mr. Ortiz [defense counsel]?

MR. ORTIZ: I agree.

THE COURT: So, if we respond, "Re-read instructions and please continue to deliberate," is there any objection to that?

MRS. HILLENBURG: No.

THE COURT: Mr. Ortiz?

MR. ORTIZ: Not unless ... not unless they come back later on and say that they are confused or something like that.

THE COURT: Okay, but as to this particular note?

MR. ORTIZ: As to this, right now, that's the only thing we can do.

Record at 548-49. The court then responded to the jury as indicated. The jury deliberated for several hours after receiving the response and returned a verdict of guilty.

Before sentencing, Chandler submitted a motion to set aside the verdict on grounds of jury misconduct. Chandler alleged that the jury conducted unauthorized experiments during deliberations and utilized extrinsic materials not admitted into evidence in doing so. After a hearing, the court granted the motion. Because they reveal the trial court's rationale for granting the petition to set aside the verdict, we reproduce the comments of the court that accompanied the ruling:

Mr. Ortiz, Court hesitates to set aside a jury's verdict because the jury's verdict is so sacred. So, in this case I certainly can't find anything where they were influenced...

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6 practice notes
  • Roberts v. State, No. 47A01-9804-CR-152.
    • United States
    • Indiana Court of Appeals of Indiana
    • June 30, 1999
    ...of a legal issue, IND. CODE § 34-36-1-6 does not apply); Riggs v. State, 689 N.E.2d 460, 463 (Ind.Ct.App. 1997); State v. Chandler, 673 N.E.2d 482, 485 Because IND. CODE § 34-36-1-6 was not triggered, the jury's request is evaluated under the guidelines established by Thomas v. State, 259 I......
  • Blanchard v. State, No. 49A02-0302-CR-104.
    • United States
    • Indiana Court of Appeals of Indiana
    • January 13, 2004
    ...Therefore, we find that Blanchard waived the error by agreeing to the court's proposed response. See, e.g., State v. Chandler, 673 N.E.2d 482, 484 (Ind.Ct.App. 1996) (where we held that Chandler invited error by agreeing to the proposed response to the jury to rely on their collective recol......
  • Riggs v. State, No. 49A02-9702-PC-120
    • United States
    • Indiana Court of Appeals of Indiana
    • December 15, 1997
    ...legal issue, IC § 34-1-21-6 simply does not apply. Johnson v. State, 674 N.E.2d 180 (Ind.Ct.App.1996), trans. denied; State v. Chandler, 673 N.E.2d 482 (Ind.Ct.App.1996). This view is supported by the plain language of the statute, which After the jury have retired for deliberation, if ther......
  • Bouye v. State, No. 49S00-9703-CR-201
    • United States
    • Indiana Supreme Court of Indiana
    • July 20, 1998
    ...not apply. See Riggs v. State, 689 N.E.2d 460 (Ind.Ct.App.1997); Johnson v. State, 674 N.E.2d 180 (Ind.Ct.App.1996); State v. Chandler, 673 N.E.2d 482 (Ind.Ct.App.1996); Jones v. State, 656 N.E.2d 303 (Ind.Ct.App.1995). The other line holds that, whenever a jury requests that it be given th......
  • Request a trial to view additional results
6 cases
  • Roberts v. State, No. 47A01-9804-CR-152.
    • United States
    • Indiana Court of Appeals of Indiana
    • June 30, 1999
    ...of a legal issue, IND. CODE § 34-36-1-6 does not apply); Riggs v. State, 689 N.E.2d 460, 463 (Ind.Ct.App. 1997); State v. Chandler, 673 N.E.2d 482, 485 Because IND. CODE § 34-36-1-6 was not triggered, the jury's request is evaluated under the guidelines established by Thomas v. State, 259 I......
  • Blanchard v. State, No. 49A02-0302-CR-104.
    • United States
    • Indiana Court of Appeals of Indiana
    • January 13, 2004
    ...Therefore, we find that Blanchard waived the error by agreeing to the court's proposed response. See, e.g., State v. Chandler, 673 N.E.2d 482, 484 (Ind.Ct.App. 1996) (where we held that Chandler invited error by agreeing to the proposed response to the jury to rely on their collective recol......
  • Riggs v. State, No. 49A02-9702-PC-120
    • United States
    • Indiana Court of Appeals of Indiana
    • December 15, 1997
    ...legal issue, IC § 34-1-21-6 simply does not apply. Johnson v. State, 674 N.E.2d 180 (Ind.Ct.App.1996), trans. denied; State v. Chandler, 673 N.E.2d 482 (Ind.Ct.App.1996). This view is supported by the plain language of the statute, which After the jury have retired for deliberation, if ther......
  • Bouye v. State, No. 49S00-9703-CR-201
    • United States
    • Indiana Supreme Court of Indiana
    • July 20, 1998
    ...not apply. See Riggs v. State, 689 N.E.2d 460 (Ind.Ct.App.1997); Johnson v. State, 674 N.E.2d 180 (Ind.Ct.App.1996); State v. Chandler, 673 N.E.2d 482 (Ind.Ct.App.1996); Jones v. State, 656 N.E.2d 303 (Ind.Ct.App.1995). The other line holds that, whenever a jury requests that it be given th......
  • Request a trial to view additional results

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