Thurston v. State

• Decision Date: 04 January 1985
• Docket Number: No. 1282S496,1282S496
• Citation: 472 N.E.2d 198
• Parties: Leslie Mark THURSTON, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 198

472 N.E.2d 198

Leslie Mark THURSTON, Appellant, v. STATE of Indiana, Appellee.

No. 1282S496.

Supreme Court of Indiana.

Jan. 4, 1985.

James R. Fleming, Howard County Public Defender, Kokomo, for appellant.

Linley E. Pearson, Atty. Gen., Louis E. Ransdell, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Defendant-appellant, Leslie Mark Thurston, was charged by information with two counts of child molesting, Ind.Code Sec. 35-42-4-3(a) (Burns 1979 Repl.), and one count of incest, Ind.Code Sec. 35-46-1-3 (Burns 1979 Repl.) on October 13, 1981. Following a trial to the judge without a jury on July 13 and 14, 1982, defendant was found guilty on one count of child molesting and not guilty on the other two counts. He was sentenced to serve fourteen years in prison on his conviction.

In this direct appeal, defendant raises several issues:

(1) Whether the trial judge erred by permitting the State to introduce evidence of the time and place of the offense contrary to that stated in defendant's notice of alibi because the State's response to that notice was not timely filed.

(2) Whether the trial judge committed error in ruling that the State's response to defendant's notice of alibi was adequate.

(3) Whether the trial judge erroneously ruled that the victim's pre-trial statement to police was admissible.

(4) Whether the evidence was insufficient to support the conviction because the State failed to show that the offense charged occurred within the time period set out in the State's response to defendant's notice of alibi.

(5) Whether the trial judge made an adequate statement of aggravating circumstances to justify the imposition of an enhanced sentence.

On September 25, 1981, T.M., age ten, was brought to the police station by her father and gave a statement which was tape recorded and later transcribed. In her statement, T.M. described in detail acts of sexual fondling that she, the defendant's six-year-old stepdaughter and a six-year-old neighbor girl had engaged in with the defendant. She stated that these acts always occurred on Thursdays from approximately 6:00 p.m. to 9:00 p.m. while defendant's wife was at night school and that they took place in defendant's apartment which was above the apartment in which she lived. She stated that this had happened about twenty to twenty-five times and that she had known defendant for seven or eight months. She also described an act of fellatio she had engaged in with the defendant and further claimed that defendant had taken nude photographs of her and of his stepdaughter. These pictures and others of the defendant and T.M. and the defendant and his stepdaughter engaged in acts of fellatio were seized from defendant's automobile pursuant to the execution of a search warrant. Defendant was convicted of molesting T.M.

I.

The information charging defendant with molesting T.M. stated that this offense occurred "on or about the 10th day of September, 1981." On June 1, 1982, defendant filed a "Notice of Alibi Defense" pursuant to Ind.Code Sec. 35-5-1-1 (Burns 1979 Repl.) [Acts 1935, ch. 228, Secs. 1-3; 1974, P.L. 143, Secs. 36, 37 (repealed 1982); for new law see Ind.Code Sec. 35-36-4-1 (Burns Supp.1984) ] which provided in pertinent part "Whenever a defendant in a criminal case ... shall propose to offer in his defense evidence of alibi, the defendant shall, not less than ten days before the trial of such cause, file and serve upon the prosecuting attorney in such cause a notice in writing of his intention to offer such defense. The notice shall include specific information in regard to the exact place at which the defendant claims to have been at the time stated in the indictment or information as the time of such offense."

Defendant's notice stated that at the time of the offense as charged he was at 900 Belvedere Court, Kokomo, Howard County, Indiana. This was his place of work.

He further requested that the prosecutor file a specific statement denoting the exact date, time and location of the offense charged under Ind.Code Sec. 35-5-1-2 (Burns 1979 Repl.) [Acts 1935, ch. 228, Secs. 1-3; 1974, P.L. 143, Secs. 36, 37 (repealed 1982); for new law see Ind.Code Sec. 35-36-4-2 (Burns Supp.1984) ] which stated in part:

"In the defendant's notice, required under this chapter, the defendant may also expressly require the prosecuting attorney to file and to serve upon the defendant or upon his counsel a specific statement in regard to the exact date which the prosecutor proposes to present at trial as the date when, and the exact place which the prosecution proposes to present at the trial as the place where the defendant was alleged to have committed or to have participated in this offense. If the defendant's notice requires such statement by the prosecuting attorney ..., the prosecuting attorney shall file and serve such statement upon the defendant or upon his counsel not later than eight days before the trial."

On June 4, 1982, the State filed its "Response to Defendant's Notice of Alibi" reciting that the State expected to prove at trial that the offenses occurred between April 1, 1981, and October 1, 1981, at 1805 1/2 North Wabash Street, Kokomo, Howard County, Indiana, the defendant's residence. On June 9, 1982, the defendant filed a "Motion to Strike" claiming that the State's response to his notice of alibi did not state the exact date on which the offense charged occurred and praying that the court "require the State of Indiana to file an amended response to the alibi notice" stating that exact date of the offense. The trial court took defendant's motion under consideration and on July 1, 1982, granted it, ordering the State to file a more specific answer, while also ruling that the State did not have to be exact in its answer. On July 12, 1982, the day before defendant's trial began, the State filed a second "State's Response to Defendant's Notice of Alibi" which stated that the State expected to prove that the offense charged occurred between August 1, 1981, and October 1, 1981, at the North Wabash Street address.

At trial when the State's first witness, Officer Donald Mills, attempted to testify about the execution of the search warrant at 1805 1/2 North Wabash, defense counsel objected and moved to strike the State's second response, in part on the basis that the State's response had not been timely filed and that therefore any evidence as to date and place different from that specified in the defendant's notice should be excluded. In so asserting, he cited Ind.Code Sec. 35-5-1-3 (Burns 1979 Repl.) [Acts 1935, ch. 228, Secs. 1-3; 1974; P.L. 143, Secs. 36, 37 (repealed 1982); for new law see Ind.Code Sec. 35-36-4-3 (Burns Supp.1984) ] which provided in part:

"At the trial, if it appears that the prosecuting attorney has failed to file and to serve upon the defendant or upon his counsel the prosecuting attorney's statement as prescribed herein, the court shall, in the absence of a showing of good cause for such failure by the prosecuting attorney, exclude evidence offered by the prosecuting attorney to show that the defendant was at a place other than the place stated in the defendant's original notice and that the time was other than the time stated in the defendant's original notice."

The trial court conducted a lengthy hearing on whether there was good cause for the State to file its response after the eight day deadline prescribed by the statute. At the conclusion of this hearing, the judge ruled that irrespective of whether the State had shown good cause for its late filing, the State's second response was an amendment to the first response and related back to the date of the original filing and was therefore timely. Defendant was granted a continuing objection to all evidence outside his notice of alibi defense.

Defendant claims that the trial court erred in ruling that the second response was an amendment to the State's original response and was thus timely. He claims that the State did not designate the second response as an amendment and that the record does not support a finding that it was one. However, the record does show that defendant specifically requested in his motion to strike that the State amend its response and that the trial judge granted defendant's motion. The place specified in the first response was not changed and the time period was only narrowed from one direction of its outside limit. The trial judge ruled that in granting defendant's motion to strike he had ordered the State to amend its answer and therefore the State's second answer related back to its first and was timely filed. We do not believe the ruling of the trial judge was error.

II.

In his motion to strike the State's second response to his notice of alibi defense made after the trial began, defendant also argued that the response should be stricken because it was not adequate. The trial judge ruled that the State's amended response was sufficiently specific and overruled and denied defendant's oral motion to strike. Defendant argues on appeal that this was error, claiming that the State's response was overbroad since it encompassed a two month period rather than indicating the specific date of the offense.

We have held that "the purpose of the notice of alibi statute is to narrow the factual issues of time and place to the degree practicable." Bruce v. State (1978), 268 Ind. 180, 207, 375 N.E.2d 1042, 1058, cert. denied 439 U.S. 988, 99 S.Ct. 586, 58 L.Ed.2d 662. In Bruce the defendant was charged with the murders of an elderly couple. The prosecutor's response to defendant's notice of alibi indicated that the State would prove that the murders occurred on February 4, 1974. Bruce argued that he should be more specifically apprised of the time of the offense. We found there that the evidence supported the conclusion that the State could not narrow its response beyond the twenty-four hour period since no one had seen the victims...