Townsend v. State, 05A02-9206-CR-266
| Decision Date | 29 June 1993 |
| Docket Number | No. 05A02-9206-CR-266,05A02-9206-CR-266 |
| Citation | 616 N.E.2d 47 |
| Parties | Scott D. TOWNSEND, Appellant-defendant, v. STATE of Indiana, Appellee-plaintiff. |
| Court | Indiana Appellate Court |
David C. Ford, Hartford City, for appellant-defendant.
Pamela Carter, Atty. Gen., Cynthia L. Ploughe, Deputy Atty. Gen., Indianapolis, for appellee-plaintiff.
Appellant-defendant Scott D. Townsend (Townsend) appeals his conviction for battery, 1 a class D felony, claiming that the State improperly charged him with two counts of battery in a single indictment, that it was error to call a codefendant to testify as a witness, that hearsay evidence was improperly admitted at trial, and that the evidence was not sufficient to support the conviction.
We affirm.
The facts most favorable to the judgment reveal that during the summer of 1990, Townsend and his son would occasionally stay with his girlfriend, Angela Turney (Turney), at her apartment in Blackford County, Indiana. Turney's two- Several of Turney's neighbors noticed that Townsend repeatedly mistreated Skye and Brian. In one instance, Phillip Dishman (Dishman), a neighbor who lived across the way, saw Skye playing outside with Townsend's son. Townsend yelled at the children and told them to be quiet. When they refused to do so, Dishman saw Townsend grab the children by the hair, pick them up, and carry them into the apartment. On another occasion, Dishman saw Townsend grab Skye by the hair and shove her to the ground. Other neighbors overheard Townsend's threats that he was going to whip Skye with his belt.
year-old daughter Skye, and her one-year-old son, Brian, also lived there.
Turney's neighbors reported Townsend's abuse when they saw Skye with raised bruises on her thigh. Helen Bennett (Bennett), who was babysitting for Skye, noticed the bruises and Skye told Bennett that Townsend had hit her with a belt.
On February 13, 1991, a grand jury indicted Townsend for committing the offense of battery upon Skye and Brian. Townsend proceeded to a jury trial, and he was found guilty of battery against Skye. The jury acquitted Townsend of battery against Brian.
Townsend presents the following issues for our review:
1. Did the State improperly charge Townsend with two counts of battery in a single indictment which listed Skye and Brian as two separate victims?
2. Was it reversible error for the State to call Turney as a witness?
3. Was hearsay testimony improperly admitted?
4. Was the evidence sufficient to support Townsend's conviction for battery?
ISSUE ONE--Did the State improperly charge Townsend with two counts of battery in a single indictment which listed Skye and Brian as two separate victims?
PARTIES' CONTENTIONS--Townsend argues that the State erred in charging him with two counts of battery against two different victims in the same indictment. The State responds that the indictment was not defective because the evidence introduced at trial demonstrated that Townsend's acts of battery against each victim were separate and distinct.
CONCLUSION--Townsend has failed to show that charging him with committing two counts of battery in a single indictment constituted reversible error, inasmuch as he has waived the issue.
On February 13, 1991, the grand jury returned the following indictment:
Record at 6. After hearing the evidence, the petit jury was given four verdict forms which comprised of guilty forms and not guilty forms for the offenses against each of the children. Record at 81-82. The jury found Townsend guilty of battery against Skye, but he was acquitted of battery against Brian. Record at 84-85.
While Ind.Code 35-34-1-9 (1988) provides that an indictment may include more than one charge if the offenses are of the same or similar character, the charging information before us alleged that Townsend committed battery against two different individuals. As our supreme court determined in Knopf v. State (1882), 84 Ind. 316, "When two or more independent offences are joined in the same count, it will be bad for duplicity." Id. at 324.
Ind.Code 35-34-1-4 (1988) provides that defective indictments and informations, including the duplicity of allegations, are subject to a defendant's motion to dismiss. The record before us does not show that Townsend ever made such a motion in accordance with IC 35-34-1-4. The untimely filing of such a motion causes the issue to be waived. Gibbs v. State (1985), Ind., 483 N.E.2d 1365; Land v. State (1984), Ind., 470 N.E.2d 697. Townsend has waived any allegation of error that the indictment was defective.
ISSUE TWO--Was it reversible error for the State to call Turney, Townsend's codefendant, to testify as a witness?
PARTIES' CONTENTIONS--Townsend contends that the State improperly called Turney to testify because the prosecutor allegedly knew that she would refuse to testify, and the State informed the jury that it intended to ask Turney incriminating questions. The State counters that no error occurred because there is no evidence that the State knew, prior to Turney's appearance on the witness stand, that she intended to invoke her right against self-incrimination.
CONCLUSION--Reversible error did not occur when the State called co-defendant Turney to testify at trial.
When Turney was called as a witness, she answered questions regarding her relationship with Townsend, and she told the jury that she also had been indicted for battery. Turney then invoked her constitutional right against self-incrimination. Following these preliminary questions, the State advised the trial court that it intended to inquire further regarding the facts of the indictment. At no time did Townsend object to Turney's appearance as a witness or to the exercise of her privilege against self-incrimination.
Townsend claims that it was reversible error for the State to call Turney as a witness, and argues that Tucker v. State (1989), Ind., 534 N.E.2d 1110 is controlling authority. In Tucker, the State called a witness who was a confederate of the defendant Tucker in the charged crime. The witness refused to be sworn and the trial judge held him in contempt. The trial court ignored the defendant's request to admonish the jury to disregard the event. Tucker was convicted and on appeal, our supreme court reversed and observed that:
Id. at 1111 (emphasis supplied).
Unlike the situation in Tucker, the record before us in no way reflects that the State had prior knowledge of Turney's intention to invoke her Fifth Amendment right against self-incrimination. The prosecutor did not make any statement to the court or to Turney which may have suggested that Turney would refuse to answer incriminating questions. Tucker is therefore inapposite to Townsend's position.
There is yet another string to our bow. Although Tucker held that a defendant is entitled to have the jury admonished after a confederate has refused to testify, the defendant must make such a request. In Gadacz v. State (1981), Ind., 426 N.E.2d 376, our supreme court declined to reverse the defendant's conviction when the State called a convicted co-conspirator as a witness who asserted her Fifth Amendment rights. While the court observed that the "defendant was entitled to an admonishment that the witness' exercise of Fifth Amendment rights was not to be considered as evidence of the Defendant's guilt," Id. at 378, reversal was not warranted because the defendant failed to request an admonishment.
Townsend made no attempt to prevent the State from calling Turney as a witness, and there was no objection when Turney took the witness stand. Additionally, Townsend did not request an admonishment after Turney invoked her Fifth Amendment rights. We therefore conclude that reversible error did not occur when the State called Turney as a witness.
ISSUE THREE--Did the trial court improperly admit hearsay testimony at trial?
PARTIES' CONTENTIONS--Townsend argues that it was error to permit Bennett (the babysitter) to testify as to what Skye told her regarding the incidents with Townsend. The State responds that the error is waived because Townsend failed to raise a timely objection to Bennett's testimony.
CONCLUSION--Townsend has waived the issue.
At trial, Bennett (the babysitter), testified that when she asked Skye about the bruises, Skye stated that "Scott done it." Bennett also testified that Skye told her that Townsend had spanked her with a belt. Townsend did not object to either statement. Record at 588.
While hearsay evidence is generally held to be inadmissible, such evidence may be considered for substantive purposes and is sufficient to establish a material fact at issue when...
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