Sundling v. State

Decision Date15 May 1997
Docket NumberNo. 44A04-9606-CR-230,44A04-9606-CR-230
Citation679 N.E.2d 988
PartiesJoseph E. SUNDLING, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
CourtIndiana Appellate Court
OPINION

DARDEN, Judge.

STATEMENT OF THE CASE

Joseph E. Sundling appeals his conviction by jury on three counts of child molestation as class B felonies. 1

ISSUES

I. Whether Sundling was denied the right to a speedy trial.

II. Whether the evidence was sufficient to establish territorial jurisdiction with respect to one count of child molestation.

III. Whether the trial court erred in admitting evidence of other crimes, wrongs, and acts.

FACTS

The facts most favorable to the jury's verdict reveal that in 1991, Sundling became acquainted with Dan and Teresa Lovell, who lived in Sturgis, Michigan, and Mrs. Lovell's two minor children from a previous marriage, B.W. and his younger brother, A.W. The Lovells and their children became friends with Sundling, and after Sundling lost his job in 1994, he lived with the family while working on their house.

On November 18, 1994, Sundling agreed to babysit B.W. and A.W. for the Lovells. After stopping at a gas station to get some snack food, Sundling took B.W., A.W., and two other children to the Super 8 Motel in LaGrange, Indiana. Ten year old B.W. testified that, while at the motel, Sundling "sucked on [his] weenie" when the other children were sleeping. (R. 493). In clarifying this statement, B.W. further testified that his penis was touched by Sundling's hand and mouth. B.W. was nine years of age at that time.

On March 25, 1995, Sundling again took B.W. and A.W. to the same motel in Indiana to sleep overnight. On this second occasion, two different children, C.S. and J.B., were present. B.W. testified that Sundling again fondled and performed oral sex on him while he was nude. At trial, Shirley Weidler, an employee of the Super 8 Motel, identified ledger cards showing that Sundling had registered at the motel on both November 19, 1994 and March 25, 1995. The evidence is undisputed that the only occasions where Sundling, B.W., and A.W. stayed at a motel in Indiana were on these dates.

On March 28, 1995, Denitta Smith informed Mrs. Lovell that Sundling had had oral sex with several boys, including B.W., A.W., and Smith's own son C.S. After being questioned, B.W. and A.W. told their mother that Sundling had touched and sucked on their penises. At trial, eight year old A.W. also testified that his "private parts" were touched by Sundling, who used both his mouth and hands. However, his testimony was very confusing as to the specific location and date of said touching. Mrs. Lovell initially went to the police post in White Pigeon, Michigan, but when it appeared that the alleged criminal conduct had occurred in Indiana, the Michigan State Police contacted the LaGrange County Sheriff's Department, which initiated its own investigation.

Sundling was charged with three counts of child molestation: Count I alleged Sundling molested B.W. on March 25, 1995, and Counts II and III alleged Sundling molested B.W. and A.W., respectively, on or about August 18, 1994 to September 9, 1994. The informations as to Counts II and III were amended alleging the molestations occurred on or about November 18 or 19, 1994. Sundling was subsequently convicted by jury trial of all three counts. Other facts relevant to this appeal are provided as necessary.

DECISION
I. Right to Speedy Trial

Sundling was charged in St. Joseph County, Michigan in April of 1995. Although the Indiana charging informations in this cause were filed on April 13, 1995, Sundling was not returned to Indiana for his initial hearing until October 6, 1995. On October 16, 1995, Sundling filed a motion for an early jury trial. At a pre-trial hearing conducted on October 25, 1995, the trial court set the cause for trial on December 12, 1995, which was within the 70 days of October 16, pursuant to Ind.Crim. Rule 4(B)(1). 2 On December 12, prior to the commencement of jury selection, Sundling's counsel filed a motion to withdraw, a motion to dismiss, and a motion for a continuance, all alleging that the State had failed to comply with the trial court's discovery orders. Just prior to voir dire, the trial court considered these motions, and stated to the potential jurors as follows:

We've been engaging in the discussion of various motions. What we're going--what our plan is is to pick the jury today, and that will take some time. The trial itself will be conducted on February 1 and 2, which means you'll be picked today and you'll be brought back in February to--uh--participate.

(R. 345). After the prospective jurors were selected and sworn, the trial court, without objection by Sundling, recessed the trial until February 1, 1996.

Sundling now contends that he should be discharged because his right to an early trial pursuant to Crim.R. 4(B)(1) was violated. Specifically, Sundling contends that he was denied his right to receive a trial within the 70-day time limit because the trial court continued the case beyond the 70-day time limit after the jury had been selected and sworn.

Assuming Sundling's right to a speedy trial pursuant to Crim.R. 4(B)(1) was violated, he may not make his motion for discharge for the first time on appeal. Sholar v. State, 626 N.E.2d 547, 549 (Ind.Ct.App.1993); Buza v. State, 529 N.E.2d 334, 337 (Ind.1988). The defendant waives review of this issue on appeal if he does not make a motion for discharge or motion for dismissal prior to trial. Id.; Lloyd v. State, 448 N.E.2d 1062, 1066 (Ind.1983). In Lloyd, our supreme court stated that such a request provides an enforcement mechanism for Crim.R. 4(B) and a defendant's failure to attempt to enforce his request for a speedy trial waives any issue thereon. Id. In this case, Sundling did not move for discharge based on his October 16, 1995 speedy trial motion prior to trial. Furthermore, we can find no indication in the record that Sundling made a timely objection to the trial court's bifurcation of the trial proceedings, which recessed the cause beyond the 70-day limit permitted by the rule. Thus, Sundling has waived review of this issue.

II. Territorial Jurisdiction

Sundling next contends that his conviction regarding Count III, the alleged molestation of A.W., should be reversed because the trial court lacked territorial jurisdiction. Sundling basically contends that the State failed to prove that he molested A.W. in Indiana. We agree.

A person may be convicted of a crime in Indiana if either the conduct that is an element of the offense, the result that is an element, or both, occur in Indiana. See Ind.Code 35-41-1-1(a)(1); McKinney v. State, 553 N.E.2d 860, 862 (Ind.Ct.App.1990). In McKinney, this Court stated:

Territorial jurisdiction is not necessarily thought of as an element of a crime. Nevertheless, the territorial jurisdiction is a fact that must be established. Indiana Statutes do not define jurisdiction as an element of the offense; however, where the law has established the necessity of a certain fact for an existence of that fact is treated much like an element of the offense. In this case then territorial jurisdiction is an element of the offense that must be proved by the state.

Id. (citations omitted). McKinney concluded that the State must prove territorial jurisdiction beyond a reasonable doubt. Id. at 863.

Our inquiry now turns to whether there was sufficient evidence to prove territorial jurisdiction beyond a reasonable doubt. When reviewing the sufficiency of the evidence, we neither weigh the evidence nor resolve questions of credibility. Jordan v. State, 656 N.E.2d 816, 817 (Ind.1995). We look only to the evidence of probative value and the reasonable inferences to be drawn therefrom which support the verdict. Id. If from that viewpoint there is evidence of probative value from which a reasonable trier of fact could conclude that the defendant was guilty beyond a reasonable doubt, we will affirm the conviction. Spangler v. State, 607 N.E.2d 720, 724 (Ind.1993).

An examination of the record reveals that there is no evidence that A.W. was molested by Sundling in Indiana. The State contends that the trial court relied upon B.W.'s testimony regarding the location of Sundling's alleged molestation of A.W. However, B.W.'s testimony merely established that A.W. and two other children were present at the Motel 8 in LaGrange, Indiana at the time B.W. was molested. Thus, although the prosecuting attorney may have established that A.W. was present in the motel rooms during the molestation of B.W., the record is devoid of any evidence that Sundling also molested A.W. at the Super 8 Motel in Indiana. Specifically, neither B.W. nor A.W testified that Sundling molested A.W. while at the motel in Indiana. To the contrary, A.W. testified that Sundling did not touch him at the Super 8 Motel in Indiana, but at a house in Sturgis, Michigan. Therefore, we must reverse and dismiss Sundling's conviction for molestation of A.W. for lack of territorial jurisdiction.

III. Evidence of Other Bad Acts

During the December 12, 1995 voir dire proceedings, Sundling's attorney asked prospective jurors various general questions regarding whether they understood that the testimony of small children could be manipulated by parents, police and therapists. After the prospective jurors were selected and sworn, the trial was recessed until February 1, 1996. On January 16, 1996, the State filed its notice to offer evidence, pursuant to Ind.Evidence Rule 404(b), alleging that Sundling's counsel indicated during voir dire that the defense would be that the children were coached or were otherwise fabricating the facts regarding the incidents of molestation. In its notice, the State...

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33 cases
  • People v. Sundling, 2–07–0455.
    • United States
    • United States Appellate Court of Illinois
    • 31 Enero 2012
    ...charges, not to a subsequent guilty plea entered after the Appellate Court of Indiana overturned the conviction. Sundling v. State, 679 N.E.2d 988 (Ind.Ct.App.1997). ¶ 82 Second, we find that the Indiana affidavit was inadmissible hearsay. As previously stated, "[h]earsay evidence is an out......
  • Cannon v. State
    • United States
    • Court of Appeals of Indiana
    • 11 Abril 2018
    ...was likely to have had a prejudicial impact on the average juror such that it contributed to the verdict." Sundling v. State , 679 N.E.2d 988, 994 (Ind. Ct. App. 1997). [10] We conclude that the admission of evidence of other bad acts, even if the result of an abuse of discretion,1 can only......
  • McCullough v. State
    • United States
    • Court of Appeals of Indiana
    • 27 Agosto 2012
    ...accuser, it is highly probable that the jury drew the forbidden propensity inference in reaching its verdicts. See Sundling v. State, 679 N.E.2d 988, 992–994 (Ind.Ct.App.1997) (holding that the trial court erred by permitting testimony regarding uncharged acts of sexual misconduct by the de......
  • Cohen v. State
    • United States
    • Court of Appeals of Indiana
    • 5 Agosto 1999
    ...erroneous admission of evidence is deemed harmless unless such error affected the substantial rights of the parties. Sundling v. State, 679 N.E.2d 988, 992 (Ind.Ct.App.1997). In determining whether reversal is mandated, the reviewing court must assess the probable impact of the improper evi......
  • Request a trial to view additional results
1 books & journal articles
  • Territorial Jurisdiction in Ohio Post-Wogenstahl.
    • United States
    • Case Western Reserve Law Review Vol. 71 No. 3, March 2021
    • 22 Marzo 2021
    ...(Tex. Crim. App. 2005); Willoughby, 892 P.2d at 1327; State v. Butler, 724 A.2d 657, 663 n.5 (Md. 1999). (93.) See Sundling v. State, 679 N.E.2d 988, 991 (Ind. Ct. App. 1997). The court in Sundling Territorial jurisdiction is not necessarily thought of as an element of a crime. Nevertheless......

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