Turner v. State, No. 32A04-0603-CR-113 (Ind. App. 12/12/2006)

• Decision Date: 12 December 2006
• Docket Number: No. 32A04-0603-CR-113,32A04-0603-CR-113
• Parties: TIMOTHY TURNER, Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff.
• Court: Court of Appeals of Indiana

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TIMOTHY TURNER, Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff.

No. 32A04-0603-CR-113

Court of Appeals of Indiana.

December 12, 2006

APPEAL FROM THE HENDRICKS CIRCUIT COURT, The Honorable J.V. Boles, Judge, Cause No. 32C01-0506-FB-7.

DANIEL F. ZIELINSKI, Danville, Indiana, ATTORNEYFOR APPELLANT.

STEPHEN R. CARTER, Attorney General of Indiana, Indianapolis, Indiana, MICHAEL GENE WORDEN, Deputy Attorney General, Indianapolis, Indiana, ATTORNEYS FOR APPELLEE.

MEMORANDUM DECISION

HOFFMAN, Senior Judge.

Defendant-Appellant Timothy Turner appeals his convictions of criminal deviate conduct, a Class B felony, Ind. Code § 35-42-4-2, and child molesting, a Class C felony, Ind. Code § 35-42-4-3. We affirm.

Turner presents three issues for our review, which we restate as:

I. Whether the trial court erred by admitting Turner's confession into evidence at trial.

II. Whether the trial court erred by admitting the victim's out-of-court statements into evidence under the protected person statute.

III. Whether there was sufficient evidence to sustain Turner's convictions.

Turner lived with his father, his stepmother, and his stepbrother, B.T. From September 2001 to November 2002, they lived with Turner's paternal grandmother, who was terminally ill. During the time the family was living with her, Turner molested B.T. B.T.'s parents were unaware of the molestations until B.T.'s mother noticed suspicious behavior between eleven-year-old B.T. and his eight-year-old cousin, D.H. When B.T.'s parents asked about this behavior, B.T. indicated that he had been molested by Turner. An investigation into B.T.'s allegations followed, and Turner was eventually charged with three counts of criminal deviate conduct as Class B felonies and one count of child molesting as a Class C felony. Following a jury trial, Turner was found guilty of child molesting and one count of criminal deviate conduct. It is from these convictions that he now appeals.

Turner first contends that the trial court erred when it allowed into evidence the inculpatory statement he made to the police. Specifically, he argues that his statement was not admissible because he was not given his Miranda¹ rights prior to making the statement.

Prior to trial, Turner filed a motion to suppress his statement, which the trial court denied. Turner renewed his objection to this evidence at trial, and the trial court overruled the objection and admitted the evidence of Turner's statement. The question on appeal is not whether the trial court erred in denying Turner's motion to suppress, but whether the trial court erred in admitting the evidence at trial. Accordingly, our standard of review is that utilized for issues regarding the admission or exclusion of evidence at trial. See Kelley v. State, 825 N.E.2d 420, 424-25 (Ind. Ct. App. 2005) (stating that once case proceeds to trial, question of whether trial court erred in denying motion to suppress is no longer viable and defendant's only available argument on appeal is whether trial court erred in admitting evidence at trial).

The admissibility of evidence is within the sound discretion of the trial court, and we will not disturb the decision of the trial court absent a showing of abuse of that discretion. Gibson v. State, 733 N.E.2d 945, 951 (Ind. Ct. App. 2000). An abuse of discretion occurs when the trial court's decision is clearly against the logic and effect of the facts and circumstances before the court. Id.

Rights under Miranda apply only to custodial interrogation. Richardson v. State, 794 N.E.2d 506, 512 (Ind. Ct. App. 2003), trans. denied, 804 N.E.2d 755. Accordingly, the two elements to analyze in deciding whether a defendant's rights were violated are (1) custody and (2) interrogation. In this case, the parties do not contest that Turner was being interrogated at the time he gave this statement. Thus, the crucial question is whether he was in custody for purposes of Miranda. We apply an objective test to determine if someone is in custody: whether a reasonable person under the same circumstances would believe themselves to be under arrest or not free to resist the requests of the police. McIntosh v. State, 829 N.E.2d 531, 537 (Ind. Ct. App. 2005), reh'g denied, trans. denied, 841 N.E.2d 185.

Here, Detective Kirby with the Danville Police Department attempted to contact Turner several times in order to speak with him regarding B.T.'s allegations. Finally, Detective Kirby obtained Turner's address and went to Turner's home. Detective Kirby testified at trial that he identified himself to Turner and advised Turner that he needed to speak with him. Detective Kirby asked if he could enter Turner's residence, and explained to Turner that he was not under arrest and that he was not going to be arrested that day. Turner invited the detective to come in. Their conversation lasted between thirty minutes and one hour. During that time, Turner admitted to one incident of fondling that he indicated occurred at their grandmother's house but denied any other incidents. In addition, Detective Kirby testified that he did not threaten Turner and that their conversation was cordial. Based upon these facts, we conclude that a reasonable person in Turner's circumstances would not have believed himself to be under arrest or not free to resist the requests of the police. Turner was not in custody, and, therefore, did not require Miranda warnings.

Next, Turner asserts that the trial court erred by admitting into evidence statements of B.T. under the protected persons statute. Ind. Code § 35-37-4-6, commonly referred to as the protected persons statute, allows hearsay statements of child sex crime victims, among others, to be admissible at trial when certain conditions are met. Ind. Code § 35-37-4-6 provides, in pertinent part:

(e) A statement or videotape described in subsection (d) is admissible in evidence in a criminal action listed in subsection (a) or (b) if, after notice to the defendant of a hearing and of the defendant's right to be present, all of the following conditions are met:

(1) The court finds, in a hearing:

(A) conducted outside the presence of the jury; and

(B) attended by the protected person; that the time, content, and circumstances of the statement or videotape provide sufficient indications of reliability.

(2) The protected person:

(A) testifies at the trial;

In this case, the trial court held the hearing required by subsection (e), at which B.T., D.H., Debra Berkey, a caseworker for the Department of Child Services, and, Dianna Turner, B.T.'s mother, testified and were subject to cross-examination. The trial court determined that B.T.'s hearsay statements to D.H., Debra Berkey, and Dianna Turner were sufficiently reliable and therefore admissible at trial. At trial, however, Turner challenged only the admission of the statements B.T. made to his mother and his cousin. Therefore, on appeal, we will address only those statements for which Turner preserved the error for appeal. See O'Neal v. State, 716 N.E.2d 82, 86 (Ind. Ct. App. 1999), reh'g denied, trans. denied, 735 N.E.2d 219 (2000) (holding that defendant must make timely objection to allegedly erroneous admission of evidence to preserve error for appeal). Further, just as we did in Issue I, above, we review the admission of this evidence for an abuse of the trial court's discretion. See Gibson, 733 N.E.2d at 951. Although we follow the typical standard of review for the admission of evidence on this issue, the appellate courts of this state have emphasized that the trial court's responsibilities under the protected persons statute carry with them "a special level of judicial responsibility." Carpenter v. State, 786 N.E.2d 696, 703 (Ind. 2003).

Turner claims that the trial court should not have allowed into evidence the statements made by B.T. to his mother and D.H. because they are not sufficiently reliable. We are instructed that, in making the reliability determination under Ind. Code § 35-37-4-6, factors to be considered include the time and circumstances of the statement, whether there was significant opportunity for coaching, the nature of the questioning, whether there was a motive to fabricate, use of age appropriate terminology, and spontaneity and repetition. Taylor v. State, 841 N.E.2d 631, 635 (Ind. Ct. App. 2006), trans. denied; see also Trujillo v. State, 806 N.E.2d 317, 325 (Ind. Ct. App. 2004). Turner specifically argues that the statements made by B.T. to his mother and D.H. were not spontaneous or contemporaneous to the event, the statements were not corroborated, B.T. does not know the difference between the truth and a lie, and B.T. had a motive to fabricate.

Turner avers that B.T.'s statements were not spontaneous or contemporaneous because the statements were describing an act that occurred two to three years earlier. However, B.T.'s statements are not rendered automatically unreliable merely because two to three years had passed from the time of the incident between B.T. and Turner and the time of B.T.'s statement to his parents. While expressing concern that the passage of time tends to diminish spontaneity and increase the likelihood of suggestion, this court has also recognized that there are undoubtedly many other factors in each individual case to be considered. See Taylor, 841 N.E.2d at 636. Here, B.T.'s mother, Dianna Turner, testified at the hearing on the protected persons statute that the suspicious behavior between B.T. and D.H. prompted her and B.T.'s father to directly question B.T. about his behavior. During that discussion, they asked B.T. if he had ever been touched by anyone, and B.T. disclosed that he had been touched by Turner. B.T.'s statement was a spontaneous response to his parents' broad question during their discussion with B.T. about his current behavior with his cousin, D.H. B.T.'s parents neither assumed nor suggested that he had been touched by anyone nor did the...