Vail v. State

Decision Date06 April 1989
Docket NumberNo. 12A02-8710-CR-397,12A02-8710-CR-397
Citation536 N.E.2d 302
PartiesJames Franklin VAIL, Sr., Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
CourtIndiana Appellate Court

Richard L. Langston, Frankfort, for defendant-appellant.

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

GARRARD, Presiding Judge.

Vail was tried by jury and was convicted of child molesting, a Class C felony. IC 35-42-4-3(c). The evidence at trial disclosed that he had gotten the eight year old victim into bed with him and after removing her panties he ejaculated between her legs.

On appeal he presents four arguments. He first contends that the court erred in refusing to grant his motion to dismiss the information. He claims the information did not state the offense with sufficient certainty because it merely alleged that the molesting occurred during the year 1984 and within Clinton County, Indiana.

Our courts have consistently held that where time is not the essence of the offense it is sufficient to allege time specifically enough to establish that the offense was committed within the period of limitations. State v. Schell (1967), 248 Ind. 183, 224 N.E.2d 49; Phillips v. State (1986), Ind.App., 499 N.E.2d 803. Furthermore, an allegation that the offense occurred within a particular county is adequate. State v. Schell, supra.

In addition, our decisions have often noted the peculiar problems attending child molesting cases and youthful witnesses and the necessity of permitting such offenses to be alleged generally in terms of time and place. See, e.g., Baggett v. State (1987), Ind., 514 N.E.2d 1244; Phillips v. State (1986), Ind.App., 499 N.E.2d 803.

Vail seeks to avoid the consequences of these rulings by pointing out that he filed a notice of alibi. The direct answer to this argument is that whether or not the state complied with the requirements of the alibi statute, IC 35-36-4-1 et seq., has nothing to do with whether the information was sufficient to charge an offense.

Vail presents no separate argument addressing his claim of alibi so no issue concerning it is present for review. We note, however, that IC 35-36-4-3 provides the remedy where the state fails to respond to an alibi notice: the court shall exclude any evidence offered by the state to establish that the defendant was at a place other than that stated in the information or that the date was other than that alleged in the information. See Ashley v. State (1986), Ind., 493 N.E.2d 768. We recognize that in cases like this the consequence may be to preclude a defendant from claiming an alibi unless he can account for the entire period at issue. On the other hand, the more generalized the state's case is as to time and place the more vulnerable it becomes to a credibility challenge.

In any event the court did not err in denying the motion to dismiss.

Vail next contends the court erred in admitting over objection the second part of a taped statement he gave to the police in which he admitted committing the offense.

The record discloses that Vail gave the statement on November 14, 1986 at the police station. The interview commenced at 10:29 a.m. Vail was first advised of his Miranda rights and executed a waiver. He then gave a statement in which he denied any involvement. At 10:47 a.m. the police stopped questioning Vail to show him a videotape of the statement they had taken from the victim. During the showing, according to Officer Moudy, Vail blurted out, "Yea, I done it." At 10:55 they resumed the taped interview in which Vail, again, confessed.

Vail argues the second portion of the tape should have been suppressed because during the break he requested an attorney. Of course, if he asserted his right to counsel, the police were bound to honor his request.

In judging such claims on appeal our standard of review requires us to consider conflicting evidence from the perspective favorable to the court's determination. If there was...

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10 cases
  • State v. Yoh
    • United States
    • Vermont Supreme Court
    • 8 d5 Setembro d5 2006
    ...judgment on appellant's PCR petition, the superior court asserted that this request was not unequivocal, citing Vail v. State, 536 N.E.2d 302, 303 (Ind.Ct. App.1989), and State v. Campbell, 367 N.W.2d 454, 459 (Minn.1985), as cases in which similar statements were held not to have invoked t......
  • State v. Jones, 92-1316-CR.
    • United States
    • Wisconsin Supreme Court
    • 2 d2 Maio d2 1995
    ...to have counsel present at questioning where the reference was to representation at trial, not at questioning); Vail v. State, 536 N.E.2d 302, 303 (Ind. App. 3 Dist. 1989) (defendant's statement in response to the prospect of going to court on the charges that "if I have to do it, I'm going......
  • Garner v. State
    • United States
    • Indiana Appellate Court
    • 29 d3 Agosto d3 2001
    ...to allege time specifically enough to establish that the offense was committed within the period of limitations. Vail v. State, 536 N.E.2d 302, 302-03 (Ind.Ct.App.1989). Moreover, our supreme court has concluded that time is not of the essence in the crime of child molesting. Barger v. Stat......
  • Broome v. State
    • United States
    • Indiana Appellate Court
    • 14 d5 Novembro d5 1997
    ...to be an ambiguous request for counsel, nor could it have been so perceived. We find support for this proposition in Vail v. State, 536 N.E.2d 302, 303 (Ind.Ct.App.1989), in which the defendant, during a custodial interrogation, declared that "If I have to do it, I'm going to have to get La......
  • Request a trial to view additional results

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