Timmons v. State

• Decision Date: 27 January 1992
• Docket Number: No. 48S00-8802-CR-00215,48S00-8802-CR-00215
• Citation: 584 N.E.2d 1108
• Parties: Mark TIMMONS, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1108

584 N.E.2d 1108

Mark TIMMONS, Appellant, v. STATE of Indiana, Appellee.

No. 48S00-8802-CR-00215.

Supreme Court of Indiana.

Jan. 27, 1992.

J. Richard Kiefer, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Lisa M. Paunicka Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Following a jury trial, appellant, Mark Timmons was convicted on two counts of performing sexual deviate conduct with a child then under the age of twelve, I.C. 35-42-4-3, the Class B felony of child molesting. The trial court sentenced appellant to twenty years on both counts with the sentences to run concurrent to each other. He now brings this direct appeal asserting that the trial court erred in permitting Dr. Marilyn Shea, Michael Kelly, and Brenda Turnbloom to testify, over hearsay objection, as to the contents of conversations they each had with T.T. Appellant also contends that his constitutional right to present evidence was infringed upon when the trial court limited the expert testimony of Dr. Ralph Underwager and did not permit Dr. Tyra Phipps to testify before the jury. Appellant further maintains that the trial court erred in giving two jury instructions regarding the degree of certainty required to convict, the giving of which had the effect of confusing and misleading the jury. Finally, appellant asserts there was insufficient evidence to support his convictions.

The following facts were adduced at trial: Appellant and Sheila Stanley were married in July of 1976. On April 7, 1981, their daughter T.T. was born. Stanley testified that in the early winter of 1983, she became suspicious that T.T. was being sexually abused. She stated that despite the fact that she bathed T.T. in the evening, she frequently noticed that in the mornings T.T.'s face smelled like semen, her hair was disheveled, and her lips appeared swollen and red. Stanley further stated that around this time T.T. began to suffer from vaginal and rectal redness. The charging information in this cause was filed in December of 1984, and states that the acts of deviate sexual conduct occurred between January 1, 1983, and June 25, 1984.

On June 25, 1984, Stanley went with her parents and T.T. to see Dr. Marilyn Shea. At trial, Dr. Shea, a psychologist in Clayton, Ohio, testified as to the contents of her conversations with T.T. Dr. Shea testified that T.T. told her that her daddy lays on top of her, puts his mouth between her legs, and kisses her "hinney." She further stated that T.T. told her that her daddy placed his penis in her mouth.

On June 28, Stanley took T.T. to the Madison County Public Welfare Department where T.T. met with caseworkers Judy West and Michael Kelly. Michael Kelly was present when West interviewed T.T. and at trial he testified as to the contents of this interview. Kelly stated that T.T., using anatomically correct dolls, demonstrated how she would take naps with her daddy. T.T. proceeded to put the hand of the child doll on the penis of the adult male doll. Kelly further testified that T.T. showed the child doll putting her head down against the penis of the adult male doll. Kelly stated that T.T. then told West that she kissed her "daddy's peepee."

Brenda Turnbloom, a therapist at the Anderson Psychiatric Clinic, began treating T.T. in August of 1984. Turnbloom continued to see T.T. every two to three weeks through April of 1987. She testified that T.T. told her that her father "put his mouth on her privates" and she had put her mouth on his. Turnbloom stated that T.T. then used the anatomically correct dolls to demonstrate this.

At trial, appellant made contemporaneous objections to the testimony of Dr. Shea, Kelly, and Turnbloom wherein these witnesses repeated the statements that T.T. made to them. The objections were overruled and these witnesses were permitted to repeat the statements before the jury. Appellant claims that the testimony was hearsay and should not have been admitted into evidence.

T.T., who was three years old at the time of the statements to the three prosecution witnesses and six years old at the time of trial, testified at trial that she no longer lives with appellant because "he did bad things to me." She further testified that appellant touched her in "private places." She stated that she remembered telling Brenda Turnbloom that appellant did bad things to her. However, she testified that she had no recollection of ever having talked with Dr. Shea or Kelly.

We commence our consideration of the trial court's decision to overrule defense counsel's hearsay objections with a definition.

Hearsay evidence is testimony in court or written evidence, of a statement made out of court, such statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.

Harvey v. State (1971), 256 Ind. 473, 476, 269 N.E.2d 759, 760 (citing McCormick on Evidence, Sec. 225 at 696 (1984)). We first consider the testimony of Turnbloom. That testimony described a statement made out of court by T.T., resting for its validity upon the credibility of T.T., and offered to prove the truth of the matters asserted therein, namely several sexual touchings of T.T. by appellant. This testimony was hearsay in the mouth of the witness Turnbloom.

The State argues that this hearsay testimony was properly admitted pursuant to an exception. Under proper circumstances, hearsay statements being offered through a witness who claims to have first hand knowledge of the content of such statements and of the fact that such statements were made, have been considered admissible as substantive evidence where the out of court declarant appears in court and is subject to cross-examination regarding those statements. Patterson v. State (1975), 263 Ind. 55, 324 N.E.2d 482.

Under this exception the party seeking to use the out-of-court statement as substantive evidence has the burden of establishing the proper foundation which entails the declarant, at trial, acknowledge that he made the statement and offer live testimony consistent with it. Traver v. State (1991), Ind., 568 N.E.2d 1009 (quoting Douglass v. State (1984), Ind., 466 N.E.2d 721). The statement is inadmissible when the declarant denies any memory of having made the statement. Lambert v. State (1989), Ind., 534 N.E.2d 235. This Court has held that merely calling a witness to the stand is not sufficient to justify a Patterson rule exception as the party wishing to use the hearsay evidence must elicit the necessary foundational testimony from its witness. Lewis v. State (1982), Ind., 440 N.E.2d 1125.

A review of the record reveals that the State established the proper foundational testimony with respect to Brenda Turnbloom's hearsay statements. In the present case, T.T. testified that she remembered speaking to Brenda Turnbloom. T.T. stated that she spoke to Turnbloom about appellant making her touch him in his private places. At trial, Turnbloom then provided detailed evidence supporting the specific charges in the information. Turnbloom stated that T.T. told her that appellant "put his mouth on her privates" and that she had put her mouth on his. The record here contains sufficient acknowledgement by the young child victim to support admission of these statements. Even though T.T.'s in-court testimony was not as detailed as the statements Turnbloom attributed to her, we conclude that, considering T.T.'s age and her testimony as a whole, the statements were properly admitted pursuant to the Patterson exception as a proper foundation was laid. The trial court thus did not err in admitting these hearsay statements wherein Brenda Turnbloom recounted the contents of her conversations with T.T.

We note that this Court's ruling in Modesitt v. State (1991), Ind., 578 N.E.2d 649, has terminated the Patterson rule. In Modesitt, Justice Krahulik, writing for the majority, stated:

In balance, we hold that, from this point forward, a prior statement is admissible as substantive evidence only if the declarant testifies at trial and is subject to cross examination concerning the statement, and the statement is (a) inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing or other proceeding, or in a deposition, or (b) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or (c) one of identification of a person made after perceiving the person.

Modesitt, 578 N.E.2d at 653-654. However, Modesitt does not apply to the case at bar in that this case was tried prior to the effective date of Modesitt.

We next address whether the trial court erred in admitting the testimony of Dr. Shea and Kelly wherein they repeated T.T.'s statements for the jury. Both prosecution witnesses testified that they had first hand knowledge of the content of the statements of T.T. and of the fact that such statements were made. The purpose of the statements was to prove the fact of improper sexual touching. The validity of the statements rested upon the credibility of T.T. The evidence was hearsay. T.T. appeared at trial and testified that she did not recall having spoken with these two prosecution witnesses. The trial court nevertheless permitted Dr. Shea and Kelly to testify over hearsay objections. In this instance the State, as the proponent of the out-of-court statements, failed to lay a proper foundation for the admission of...