Thakkar v. State
| Decision Date | 17 May 1993 |
| Docket Number | No. 48A05-9111-CR-386,48A05-9111-CR-386 |
| Citation | 613 N.E.2d 453 |
| Parties | Pravin THAKKAR, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Jeffrey A. Lockwood, Schuyler, Eisele & Lockwood, Anderson, James H. Voyles Linley E. Pearson, Atty. Gen., Lisa M. Paunicka, Deputy Atty. Gen., Indianapolis, for appellee-plaintiff.
Dennis E. Zahn, Indianapolis, for appellant-defendant.
Pravin Thakkar appeals his convictions of:
two (2) counts of performing an illegal abortion;
two (2) counts of battery;
two (2) counts of criminal recklessness; and
one (1) count of attempted illegal abortion.
The criminal recklessness convictions were merged with the battery convictions. Thakkar received concurrent eight-year sentences, with four years executed and four years suspended, on all counts except one count of performing an illegal abortion as to Connie Hertzinger. For this conviction, Thakkar received an eight-year executed sentence, to run consecutive to the other sentences.
Thakkar raises the following issues:
1. Whether the trial judge erred in denying Thakkar's motion to dismiss Count VIII (illegal abortion as to Hertzinger), because the statute of limitations had run on the alleged offense;
2. Whether the conduct and demeanor of the trial judge during voir dire denied Thakkar a fair trial before an impartial jury;
3. Whether the conduct and demeanor of the trial judge, along with erroneous rulings in favor of the State, denied Thakkar a fair trial before an impartial jury; and
4. Whether the trial judge erred in enhancing Thakkar's sentence for the Hertzinger conviction by using as aggravating circumstances a material element of the offense and lack of remorse.
We also address sua sponte whether the trial judge erred in enhancing Thakkar's sentences for the other convictions without stating any aggravating factors.
We affirm in part, reverse in part, and remand for either re-sentencing or a statement of aggravating factors.
The charges against Thakkar resulted from separate activities involving three victims. We will state the facts supporting the convictions as they pertain to each victim separately.
Carmen "Connie" Hertzinger, also known as Carmen "Connie" Singer ("Hertzinger"), first met Dr. Thakkar in October, 1982, when she went to see him at his office for treatment of a sore throat. Thakkar called Hertzinger the next day to see how the medication was working and the two agreed to meet for coffee a few days later. The two began seeing each other on a regular basis and in February, 1983, Hertzinger became pregnant with Thakkar's child. Thakkar suggested that Hertzinger have an abortion but Hertzinger refused. On October 28, 1983, Thakkar took Hertzinger to his house, telling her that he wanted to check on the progress of the baby. He told her that he could not find a heartbeat and that the baby was dead. Thakkar then gave Hertzinger some pills to calm her down and took her upstairs. Hertzinger fell asleep. She awoke at some point and heard a baby cry and then she fell asleep again. When she awoke again she asked to see the baby and Thakkar told her the baby had been stillborn.
Thakkar took Hertzinger home the next day and when Hertzinger continued to ask about the baby, Thakkar threatened her that if she did not keep quiet about the baby he would kill her and her family. Thakkar regularly repeated his threats to Hertzinger until sometime in January, 1984, after which she had no contact of any kind with him. In January, 1984, during a counseling session, Hertzinger revealed to a psychiatrist and to her therapist that Thakkar had aborted her pregnancy. Law enforcement officials were not notified of the incident until February 3, 1989.
Bonnie Coffey-Myers and Thakkar met in May, 1987, and a personal relationship developed. Coffey-Myers was concerned about becoming pregnant and agreed to have Thakkar perform a tubal ligation. Thakkar arranged to perform the tubal ligation on July 31, 1987, at Tipton Hospital and instructed Coffey-Myers to go to the hospital on July 25 in order to have blood tests prior to the surgery. Coffey-Myers told Thakkar she thought she was pregnant and Thakkar told her to come to his office after the blood test on July 25 so he could determine if she was pregnant.
When Coffey-Myers saw Thakkar in his office that afternoon, he took a urine sample and told her that she was not pregnant. He then told her that he would start her period. He proceeded to insert an instrument that "looked a lot like a big steel knitting needle" into her vagina. Coffey-Myers felt excruciating pain.
Thakkar told Coffey-Myers several days later that the blood test results from the hospital showed that she was in fact pregnant. Thakkar scheduled an appointment for her at an abortion clinic in Indianapolis, but, when Coffey-Myers arrived the clinic would not perform the abortion because the pregnancy had not reached six weeks. Thakkar performed the abortion during the tubal ligation at Tipton Hospital.
Kathy Collins met Thakkar as a patient in March, 1984. A personal relationship developed and they dated on and off from 1984 through 1987, seeing each other on a regular basis for a few months at a time. In October of 1987 they began seeing each other on a regular basis again. On January 9, 1988, during an examination to see if Collins was pregnant, Thakkar inserted a metal instrument into Collins' vagina and Collins twice felt an excruciating pain. After the examination, Collins began bleeding heavily and went to the hospital. She was told she was pregnant and should go home and put her feet up. Collins continued to bleed heavily and Thakkar put her on medication.
In late January, Thakkar admitted Collins to Mercy Hospital to take care of the bleeding. While in the hospital, Collins fell after using the bathroom and began to bleed. A nurse reached into the toilet and said, "I think this is it, I think this is the fetus." Thakkar performed a dilation and curettage on Collins and later asked her how she felt after the abortion.
Thakkar argues that the trial judge should have dismissed Count VIII (Count I of a separate indictment from the other counts, but referred to throughout trial as Count VIII), the illegal abortion performed on Hertzinger, a class C felony, because the statute of limitations had run.
Indiana Code 35-41-4-2 provides that a prosecution is barred unless it is commenced within five (5) years after the commission of a class C felony. The period within which a prosecution must be commenced does not include any period in which the accused conceals evidence of the offense. I.C. 35-41-4-2(d)(2). The indictment alleged, and the evidence at trial showed, that Thakkar performed an illegal abortion on Hertzinger on October 28, 1983, and that Thakkar threatened Hertzinger with physical harm if she told anyone what had happened. The indictment was returned on November 1, 1989, more than five (5) years after the commission of the offense.
The State, relying on Crider v. State (1988), Ind., 531 N.E.2d 1151, contends that Thakkar's threats to Hertzinger tolled the running of the statute until she revealed the facts of the crime to law enforcement officials on February 3, 1989. Crider involved a nine-year-old victim of child molesting who was threatened by his father, the defendant, not to tell about the molestations. The court concluded that the defendant's positive acts of intimidation tolled the running of the statute of limitations until the victim reported the abuse to authorities.
Thakkar asks us to distinguish Crider on the basis that the victim in that case was Thakkar's reliance on Bentley is misplaced, however. The Kansas court did not base its holding on a lack of a continuing coercive influence. Instead, the court reasoned that the victim knew the crime had been committed because crimes against persons, by their very nature, cannot be concealed. Thus, the court would not hold that a threat constitutes concealment. Id.; see also State v. Tidwell (1989), Tenn.Crim.App., 775 S.W.2d 379. Our own supreme court, however, has rejected this view and does equate threats made to a child victim with concealment of a crime. Crider, 531 N.E.2d 1151.
subjected to the ongoing parental authority of the defendant. Here, Hertzinger did not receive any threats from Thakkar, or have any other contact with him, after January of 1984. Thus, Thakkar argues, citing State v. Bentley (1986), 239 Kan. 334, 721 P.2d 227, that Hertzinger was not subjected to a continuing coercive influence that should toll the statute until she notified the authorities in February of 1989. In Bentley, the Kansas Supreme Court rejected the State's argument that the defendant's threat to his nine-year old niece and victim of abuse should toll the statute of limitations. The Kansas statute of limitations contains a section similar to I.C. 35-41-4-2(d)(2), whereby the period within which prosecution must commence does not include any period in which the fact of the crime is concealed.
Underlying both the State's and Thakkar's argument is the issue whether the reasoning of Crider should be extended to a situation where the victim is an adult. Thakkar argues that if the reasoning is applied to an adult, the statute of limitations can be tolled only during such time threats are actually made. Thus, the statute would begin to run again in January, 1984, when Thakkar stopped threatening Hertzinger. Neither party has brought to our attention, nor has our own research revealed, a case where a threat made to an adult victim was equated with concealment of the crime, thus tolling the statute of limitations.
We begin our analysis by noting that any exception to the statute of limitations must be construed narrowly and in a light most favorable to the accused. State v. Holmes (1979), 181...
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