Steward v. State

• Decision Date: 14 June 1994
• Docket Number: No. 65A04-9207-CR-251,65A04-9207-CR-251
• Citation: 636 N.E.2d 143
• Parties: Bobby Joe STEWARD, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 143

636 N.E.2d 143

Bobby Joe STEWARD, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 65A04-9207-CR-251.

Court of Appeals of Indiana First District.

June 14, 1994.

Jeffrey L. Lantz, Jon Aarstad, Evansville, for appellant.

Pamela Carter, Atty. Gen. of Ind., Cynthia L. Ploughe, Deputy Atty. Gen., Indianapolis, for appellee.

STATEMENT OF THE CASE

NAJAM, Judge.

Bobby Joe Steward appeals from his convictions on two counts of Child Molesting, ¹ one as a Class C felony and one as a Class D felony. Steward alleges the trial court erred when it (1) denied his motion to correct error which alleged that jurors slept during the trial, (2) allowed several witnesses to testify concerning the acts of molestation for which he was charged, (3) admitted expert testimony on "child sexual abuse syndrome," and (4) pursuant to the Rape Shield Statute, precluded admission of exculpatory evidence offered by Steward.

We affirm in part, reverse in part and remand for a new trial on Steward's conviction for Class C felony child molesting.

ISSUES

We restate the issues presented for review as follows:

1. Whether the trial court erred in denying Steward's motion to correct error based upon allegations that one or two jurors slept during portions of the trial.

2. Whether the trial court erred in allowing several witnesses to present testimony that the victims had informed them of Steward's acts.

3. Whether the trial court erred in admitting expert testimony regarding "child sexual abuse syndrome."

4. Whether the trial court erred in precluding Steward from presenting exculpatory evidence concerning one victim's accusations of prior molestations by men other than Steward.

FACTS

The facts most favorable to the verdicts reveal that Steward, a 52 year old police officer in Posey County, Indiana, committed acts of child molesting against S.M. and A.M.

Steward was charged in one information with four counts of child molesting, three counts as Class C felonies and one count as a Class D felony. Steward was also charged in a second information with one count of child molesting as a Class D felony.

The jury found that Steward engaged in sexual intercourse with S.M. between June of 1989 and February of 1990, while she was 15 years of age, and convicted him of one count of Class C felony child molesting. Steward was acquitted of the three remaining counts of child molesting against S.M. In addition, the jury found that during June or July of 1990, Steward touched and fondled S.M.'s 12 year old sister, A.M., on her breasts and vagina and convicted him of Class D felony child molesting. Steward was sentenced to the presumptive term of four years on the first conviction, and to one and one-half years on the second conviction, to run consecutively. Steward appeals from his convictions. We will state additional facts where necessary.

DISCUSSION AND DECISION

Issue One: Motion to Correct Error

Steward first contends that the trial court erred in not granting him a new trial, pursuant to his motion to correct error, because one or two jurors slept during portions of his trial. Without citation to authority, Steward asks that we presume prejudice and grant him a new trial. The State responds that Steward failed to preserve any error of juror misconduct and, further, that even if he preserved possible error, Steward failed to show prejudice. We agree with the State.

"A party has the duty and responsibility, upon discovery of possible juror misconduct, to formally raise the issue with the presiding court in a timely manner." Whiting v. State (1987), Ind., 516 N.E.2d 1067, 1067. "The defendant may not observe an error in the trial, make no objection, and yet claim such error as reason for reversal." Id. (quoting Merry v. State (1975), 166 Ind.App. 199, 335 N.E.2d 249, trans. denied). In Whiting, both the Appellant and his attorney were aware of jurors sleeping during trial but failed to bring that information to the trial court's attention. Our supreme court held that because the trial court was not properly apprised of the jurors' behavior and could not take corrective action, the defendant had "relinquished" the right to later assert the issue. Id. Similarly, Steward has not properly preserved this issue for our review.

Even if the issue were preserved, Steward has failed to meet his burden of establishing his claim for a new trial. "In order to prevail on an issue of this type it must be demonstrated that the jurors were actually inattentive and that the jurors' action actually resulted in prejudice." Id. at 1068. First, Steward failed to demonstrate that any juror was actually inattentive. The evidence presented showed only that one or two jurors had their eyes closed and their heads down, not that they were actually asleep. Thus, the evidence was insufficient to meet the first step of the Whiting test.

Steward has also failed to establish actual prejudice even assuming the jurors were asleep. Steward presented witnesses at the hearing on his motion to correct error who alleged to have observed jurors "sleeping." The witnesses' testimony indicates that the jurors slept anywhere from six minutes to 45 minutes at some point during trial. However, as our supreme court held in Whiting, "the mere falling asleep for a short time, by a juror, during the argument of counsel for defendant in a criminal cause, does not of itself constitute a sufficient cause for a new trial." Id. (quoting McClary v. State (1881), 75 Ind. 260). Therefore, we decline Steward's invitation to presume prejudice, decide that he does not meet the second step of the Whiting test, and conclude there was no error here.

Issue Two: Cumulative Testimony

Steward also maintains that the trial court erred in allowing cumulative testimony concerning the acts of molestation with which he was charged. Both S.M. and A.M. testified at trial that Steward molested them on various occasions. The State also presented witnesses who testified that the victims had informed them of the molestations. Steward contends that the corroborating witnesses' testimony violated the rule against prior consistent The failure to object to cumulative testimony constitutes a waiver of that issue on appeal. Goodwin v. State (1991), Ind.App., 573 N.E.2d 895, 896. Here, Steward did not raise any objections at trial to alleged repetitive testimony presented by witnesses for the State. Steward has waived review of that issue.

statements. The State responds that Steward failed to object to such testimony and, further, that even if he had objected the trial court did not err in allowing the witnesses' testimony. Again, we must agree with the State.

However, even assuming that Steward properly preserved the question for review, we conclude there was no error. Steward contends that the jury in the present case heard a "drumbeat repetition" of the victim's testimony and that he was thereby prejudiced. Brief of Appellant at 38. Our supreme court held in Modesitt v. State (1991), Ind., 578 N.E.2d 649, that it was error to allow the jury to hear the victim's version of the events, in a "drumbeat repetition," three times before the victim even testified. Id. at 654. In the present case, six witnesses, including the victims' parents, older sister and three therapists, testified regarding when, where, and how each learned of the allegations against Steward. The witnesses did not repeat the allegations made by S.M. and A.M., but merely explained the actions and events which took place after they were informed by the victims. That is not the type of testimony which Modesitt prohibits and, thus, there was no error.

Issue Three: Expert Testimony

Steward's next allegation of error concerns the admission of expert testimony to show that S.M. exhibited behavior which was consistent with victims of child sexual abuse, evidence which he contends also tainted his conviction for the count involving A.M. Steward asks that we prohibit the use of expert testimony to establish child sexual abuse syndrome because, he contends, such evidence is irrelevant, unreliable and misleading. He points out that both Utah and Pennsylvania have excluded expert testimony concerning child sexual abuse syndrome, as those states have held that to allow such testimony is tantamount to permitting the expert witness to vouch for the victim's credibility. See Commonwealth of Pennsylvania v. Dunkle (1992), 529 Pa. 168, 602 A.2d 830, 836; State v. Rimmasch (1989), Utah, 775 P.2d 388, 401. We cannot agree with Steward.

While not allowing experts to testify directly regarding a victim's credibility, Indiana courts have consistently allowed expert testimony concerning whether a particular victim's behavior is consistent with the behavioral patterns of victims of sexual abuse. Like many other jurisdictions, Indiana admits evidence that the victim is suffering from "rape trauma syndrome" for the purpose of proving that the victim was raped. Simmons v. State (1987), Ind., 504 N.E.2d 575. See also Henson v. State (1989), Ind., 535 N.E.2d 1189; Wright v. State (1991), Ind.App., 581 N.E.2d 978; Jarrett v. State (1991), Ind.App., 580 N.E.2d 245, trans. denied; Goodwin v. State (1991), Ind.App., 573 N.E.2d 895, trans. denied. Thus, the notion that a victim's mental condition is probative of a sexual assault is not novel to this state.

Here, the State offered expert testimony to show that S.M. exhibited behavior consistent with other victims of child sexual abuse. First, Dr. Betty Watson, a clinical psychologist, testified that such victims have common traits caused by their abuse, including: problems with peer and family relationships, low self-esteem, guilt and depression, suicidal feelings, and a decline in school performance. Further, Dr. Watson stated that child victims often show improvement after disclosing that such acts have occurred. According to Dr. Watson, S.M. had similar problems and exhibited similar improvement following...