Stewart v. State

• Citation: 555 N.E.2d 121
• Decision Date: 05 June 1990
• Docket Number: No. 82S00-8711-CR-01092,82S00-8711-CR-01092
• Parties: Troy STEWART, Jr., Appellant, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 121

555 N.E.2d 121

Troy STEWART, Jr., Appellant, v. STATE of Indiana, Appellee.

No. 82S00-8711-CR-01092.

Supreme Court of Indiana.

June 5, 1990.

David K. Robinson, Evansville, for appellant.

Linley E. Pearson, Atty. Gen., Mary Dreyer, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

A jury found appellant guilty of one count of criminal confinement, I.C. 35-42-3-3(a)(1), a class D felony, and one count of criminal deviate conduct, I.C. 35-42-4-2, a class B felony. ¹ He received a four-year sentence on the confinement conviction and a fifteen-year sentence on the criminal deviate conduct conviction. The sentences were ordered to run consecutively, resulting in a nineteen-year executed sentence. Appellant raises four issues in this direct appeal.

The evidence produced at trial which tended to support the verdict showed that appellant was a city bus driver in Evansville and made the acquaintance of Larry Patrick, who frequently rode his bus. Through Larry, appellant met Larry's brothers, Randal and John Harp and Tim Patrick. Larry Patrick is mentally retarded and all three of his brothers suffer learning disabilities. On a few occasions, appellant took the brothers riding around in his car, out for hamburgers and cokes, and to his health spa. These excursions sometimes included Jonathon Davis, a friend of theirs who had also been identified by his school as a slow learner. Larry Patrick called appellant on July 19, 1986, to see if appellant would take them riding around. When appellant arrived at the Harp residence, Larry and Tim were outside with Jonathon Davis and another friend, Marion Marx (Mario). ² Only Randal and Mario decided to go with appellant, and the three left with appellant driving.

Randal testified that appellant had a bottle of .151 proof Bacardi rum and several cans of beer in the car and that as they drove from Evansville to Carmi, Illinois, appellant stopped at a liquor store and bought a bottle of whiskey. All three shared the liquor, but Mario consumed most of the rum and a few of the beers, and Randal said Mario became so intoxicated that he spent a large part of the trip slumped against Randal's shoulder because he was unable to hold himself up. As they continued driving, appellant told Mario that he was sober if he did not have an erection. He reached over and stroked Mario's penis and asked him if it felt good, and he attempted to fondle Randal as well. Both boys testified that they pushed appellant's hand away. Upon their return to Evansville, the boys said their parents would be angry if they came home in their present condition, and the three went to appellant's house. Mario passed out and had to be carried by Randal and appellant into the house, where he was put into appellant's waterbed. Randal testified that appellant stripped Mario down to his underwear, telling Randal that this would cool him down and help sober him up quickly. The waterbed's waves made Mario sick, and he threw up and started choking. Randal cleaned Mario up, then went to sleep on another bed which was in the room.

Between 4:30-5:00 a.m. on July 20, Randal woke to Mario calling, "Help, Randy, get me out of here. I don't want to be a fagot [sic]. Help me, get me out of this weird house." Randal got up and turned on a light. He testified that appellant said, "Ah, he's okay, leave him alone." Randal saw that Mario's underwear had been pulled down to his knees and that appellant, dressed in his underpants and a tank top, was in bed with Mario and was "fingering, sticking his finger in Mario's anus, and playing with his penis." Randal testified that Mario tried repeatedly to get up, but appellant pulled him back down and that appellant had an erection and was trying to put his penis into Mario's anus. Randal told appellant to stop, whereupon appellant got out of the bed, put Randal in a headlock and threatened to break his neck if he said anything. Randal slipped away from appellant and pushed him against the wall and got ready to hit him. During this scuffle, Mario got out of bed, dressed, and left.

Randal and his mother testified that they saw Mario later in the day and that he told them that he was sore and had been bleeding and that he had a tremendous headache. Mario testified that, due to the extent of his intoxication, he had only a disjointed recollection of the incident, that, in fact, he had thought and hoped that the whole thing might have been a nightmare until Randal asked him if he remembered what had happened to him.

I.

Appellant's first claim on appeal is that the trial court erred in admitting evidence concerning prior acts of misconduct between appellant and State's witnesses. Randal and John Harp, Larry Patrick, and Jonathon Davis testified that some days before the incident at issue here, appellant had taken the four of them to the spa. The boys were walking around the whirlpool dressed in towels, and appellant, who was sitting naked in the whirlpool, asked them if they were afraid to show their penises. Larry testified that at that time appellant tried to grab at Jonathon. Randal Harp and Larry Patrick testified that they rode in the front seat of appellant's car on the way home and that, during the drive back, appellant had put his hand on Randal's leg and tried to move it up to his penis. Both testified that he stopped when Randal knocked his hand away. John Harp testified that on one occasion when he and his brothers had been out with appellant in his car, appellant had given him alcohol to drink and then had him rub onions from a fast-food order on his shirt to disguise the smell. John testified further that he had been alone with appellant in his house a few days before July 19 and that appellant gave him some .151 Bacardi and asked John to go into his bedroom so he could show John a good time. Appellant also told John at that time that he had had sexual intercourse with Tim Berta, an acquaintance of John's. Randal, Larry and Jonathon testified that when appellant drove up on July 19, he asked Tim Harp and the others if they "screwed." He then said he and the boys were going to have a good time and showed them the bottle of .151 Bacardi he had with him. He also told Jonathon Davis that he liked guys with long legs like Jonathon's that could wrap around him.

The trial court also admitted the testimony of Tim Berta, a twenty-four-year-old retarded man, who testified that he had met appellant while riding appellant's bus. Appellant took Berta out for meals and to his health club, and he arranged with Berta's group home to be his volunteer sponsor, which allowed appellant to take him on overnight excursions. Berta testified that on one of these occasions, appellant told him to go into the bedroom and take his clothes off. Berta said he did not want to, and appellant's response was "Why not?" Berta continued to express his reluctance, to which appellant uniformly replied, "Why not?" Ultimately, both men disrobed and appellant performed fellatio on Berta and then requested that Berta do the same to him. When Berta hesitated, appellant again challenged him with "Why not?" and Berta complied. The men then performed anal intercourse upon each other after appellant told Berta to do it. Berta testified that several times after this, he and appellant engaged in oral and anal intercourse in appellant's house and car.

Appellant contends that all of this evidence was erroneously admitted in that it was offered solely to prejudice him in the eyes of the jury and did not come within any of the exceptions to the general prohibition against the admission of evidence of uncharged misconduct. As a general rule, evidence of past misconduct is inadmissible. Jarrett v. State (1984), Ind., 465 N.E.2d 1097. This rule is subject to certain, discrete exceptions, one of which being that evidence of certain kinds of prior sexual conduct is admissible under the depraved sexual instinct exception. Id. This exception has been carved out of the general rule because "[a]cts showing a perverted sexual instinct are circumstances which with other circumstances may have a tendency to connect an accused with a crime of that character," Kerlin v. State (1970), 255 Ind. 420, 424, 265 N.E.2d 22, 25 (quoting Lovely v. United States, 169 F.2d 386, 390 (4th Cir.1948)), and to lend credence to a victim's accusations or testimony which describe acts which would otherwise seem improbable standing alone. Stwalley v. State (1989), Ind., 534 N.E.2d 229. The ultimate test of admissibility is whether or not the evidence of prior misconduct actually has that particular relevance, signified by the legal labels of each category of exception, which relevance is deemed to outweigh the tendency to prejudice the fairness of the proceeding.

The testimony of all the witnesses with regard to uncharged acts had that quality of relevance rendering it admissible under the depraved sexual instinct exception. The uncharged acts being offered need not be identical to the acts charged; it is sufficient if the same sexual instinct is involved. Jarrett, 465 N.E.2d at 1100 (charged and uncharged acts involved homosexual advances and activities and minor victims). Here, all but one of the targets of appellant's homosexual advances were minors. Further, the charged and uncharged acts were similar in time and proximity in that the advances toward the teenage boys were committed within a week or two of the charged acts, and all of the physical overtures, including the acts of intercourse with Tim Berta, were all committed either in appellant's car or his home. See Hodges v. State (1988), Ind., 524 N.E.2d 774.

Appellant objected with particular vehemence to the admission of Tim Berta's testimony and, prior to trial, the court conducted an extensive hearing on this issue. Both sides focused their arguments primarily on whether the sexual acts between appellant and Berta violated the criminal deviate conduct statute. The court...