Turnpaugh v. State
| Citation | 521 N.E.2d 690 |
| Decision Date | 20 April 1988 |
| Docket Number | No. 25S00-8606-CR-568,25S00-8606-CR-568 |
| Parties | Thomas TURNPAUGH, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
James O. Wells, Jr., Rochester, for appellant.
Linley E. Pearson, Atty. Gen., Joseph N. Stevenson, Deputy Atty. Gen., Indianapolis, for appellee.
Appellant directly appeals his convictions for child molesting, class C felony, and attempted child molesting, class B felony. He received a sentence of seven years for the C felony and a sentence of fifteen years for the B felony, the latter enhanced by thirty years due to an habitual offender determination.
There are three issues presented for review: (1) whether the two causes were improperly joined for trial; (2) whether results of tests performed on samples from a "rape kit" were improperly admitted due to loss of the samples and kit; and (3) whether there was sufficient evidence of identity to support the convictions.
These are the facts from the record which tend to support the determination of guilt. Mary, her son Andy, and her boyfriend Sam were temporarily living with appellant and his wife. Appellant and Sam picked up Mary's two sisters, Judy, age fourteen, and Penny, age eight, so they could visit with Mary and spend the night. Mary and Sam left the children, Judy, Penny and Andy, at appellant's house to sleep while they slept in a nearby trailer. In the early morning hours of March 21, 1982, the older child, Judy, knocked on the door of the trailer and informed her sister, Mary, that appellant had raped her. Mary and Sam retrieved Penny and Andy and some of their belongings from appellant's house and called a friend to pick them up and take them to the girls' mother's house. Judy was then taken to the police station to report the incident and to the hospital for an examination at which time the doctor prepared a rape kit. A few days later, Judy's eight year old sister, Penny, reported to a welfare department case worker that on March 20, the evening preceding the alleged rape of Judy, appellant had attempted sexual intercourse with her. Neither victim was able to identify appellant at trial although both were acquainted with him prior to these incidents.
Error is asserted in the joinder for purposes of trial of the two offenses. It is contended that the causes were joined solely because they were of similar nature. Appellant urges that since there were different victims alleged, the informations were filed two years apart, and the offenses occurred on different days, there was no basis for the joinder.
I.C 35-34-1-9(a) provides that:
While appellant's compound premise is true it does not include all material factors. Each offense did deal with a different individual, however the victims were sisters who were both spending the night in appellant's home. Further, while the events occurred on different days, the attempted molestation of Penny occurred on the evening of March 20, 1982, and the incident with Judy occurred later that night, in the early morning hours of March 21, 1982. The informations were filed two years apart; however, appellant was absent from the jurisdiction for most of that time period.
The fact that the crimes charged occurred the same night and were committed against young sisters who were overnight guests sufficiently shows that the misconduct in each case was part of a series of acts committed together and part of a single scheme or plan. There was no error committed by the joinder of these offenses.
A "rape kit" was assembled at the hospital at the request of police investigators. It contained samples taken from the older victim, Judy, on March 21, 1982, the same day she was allegedly molested. Later analysis of vaginal and cervical swabs from the rape kit revealed the presence of sperm and indicated the strong possibility that the producer of the sperm was a secretor who had type O blood. No analysis was made of hair samples taken from her pubic region and also included in the rape kit. The items of physical evidence comprising the rape kit were then negligently lost by the police.
The trial court denied a motion to dismiss the prosecution and a motion to suppress the State's test results, which motions were based upon the inability of the prosecution to produce the material comprising the rape kit for independent testing by defense experts. Objections upon the same grounds were made to the admission of trial testimony describing the collection of the items in the kit, their testing, and the results of such testing. The trial court overruled...
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Rita v. State
... ... We find no error ... The defendant in a criminal case has the right to examine physical evidence in the hands of the prosecution. Turnpaugh v. State, 521 N.E.2d 690, 692 (Ind.1988), citing Miller v. Pate, 386 U.S. 1, 87 S.Ct. 785, 17 L.Ed.2d 690 (1967). The negligent destruction or withholding of material evidence by the police or prosecution may present grounds for reversal because it denies due process under the Fourteenth Amendment ... ...
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Pierce v. State
...can also be linked by a defendant's efforts to take advantage of his special relationship with the victims. E.g., Turnpaugh v. State, 521 N.E.2d 690, 692 (Ind.1988) (finding child molestation charges were connected together where the victims were two young sisters who were overnight guests ......
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Davidson v. State
... ... The events took place on the same morning and against the same victim. Davidson does not indicate why the offenses should not have been joined. There was no error committed by the joinder of these offenses. See, e.g., Turnpaugh v. State (1988), Ind., 521 N.E.2d 690 (charged crimes were properly joined when they took place on the same night and were committed against young sisters who were both spending the night in defendant's home) ... Davidson next argues there was insufficient evidence to sustain his ... ...
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Wissman v. State
...believe the prejudice appellant suffered from the excluded exhibit was of such significance as to warrant a reversal. Turnpaugh v. State (1988), Ind., 521 N.E.2d 690. Appellant argues the trial court erred in allowing Officer Schollian to testify about his self-incriminating Officer Scholli......