Warrick v. State
| Citation | 538 N.E.2d 952 |
| Decision Date | 22 May 1989 |
| Docket Number | No. 32A04-8811-CR-394,32A04-8811-CR-394 |
| Parties | Phillip C. WARRICK, a/k/a P.C. Warrick, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Court of Appeals of Indiana |
Linley E. Pearson, Atty. Gen., Amy Schaeffer Good, Deputy Atty. Gen., Indianapolis, for appellee.
Gary L. Wood, Howard & Lawson, Danville, for appellant.
Defendant-Appellant, Phillip C. (P.C.) Warrick, appeals his conviction on three (3) counts of Criminal Deviate Conduct, a Class B felony, and three (3) counts of Child Molesting, a class D felony after a trial by jury. We reverse in part and affirm in part.
I. Whether the trial court erred by not granting the defendant's motion for judgment on the evidence, in whole or in part, at the close of the State's case.
II. Whether the verdict, and subsequent judgment, was based upon sufficient evidence.
III. Whether the actions of the prosecutor at trial constituted prosecutorial misconduct and requires reversal.
IV. Whether the defendant was denied effective assistance of counsel.
Defendant, P.C. Warrick, lived on the grounds of a wrecker yard to watch over the premises for the owner. The victim, age 12 at the time of the incident, befriended Warrick and performed odd jobs for him at the wrecker yard. The victim was in the sixth grade at the time of trial and had been retained one year in school.
Warrick allegedly gave the victim beer on occasion, and on approximately July 1, 1987, he gave the victim two beers; Warrick denies ever giving beer to the victim. Subsequently, the two went into Warrick's sleeping room and watched television. While the victim was watching television, Warrick began fondling the victim's genitals through his clothing. Then Warrick pulled the victim's pants down and Warrick placed his mouth upon the victim's penis and placed his finger into the victim's anus.
Approximately five to seven days later, the same sequence of events took place. There is no evidence that Warrick gave beer to the victim immediately prior to this incident. Approximately one week later the same sequence of events took place again, except that instead of inserting his finger into the victim's anus, Warrick inserted his penis into the victim's anus. Again, there was no evidence that Warrick gave beer to the victim immediately prior to this incident.
On February 4, 1988, the victim discussed the incidents with the school's assistant principal, Katherine Isenhour. Isenhour subsequently contacted the Brownsburg Police Department. After an investigation Warrick was arrested and charged with three (3) counts of Criminal Deviate Conduct, a Class B Felony, and three (3) counts of Child Molesting, a Class D Felony.
On May 23, 1988, Warrick was tried by jury and found guilty on all six (6) counts. On June 21, 1988, Warrick was sentenced to three (3) ten (10) year terms on the Criminal Deviate Conduct counts, to be served concurrently, and three (3) two (2) year terms on the Child Molesting counts, also to be served concurrently. The court ordered that the ten (10) year terms and the two (2) year terms be served consecutively for a total sentence of twelve (12) years.
Warrick argues that the State did not prove a prima facie case on the Criminal Deviate Conduct counts. The statute defining the offense of criminal deviate conduct reads in pertinent part as follows:
35-42-4-2. Criminal deviate conduct.--A person who knowingly or intentionally causes another person to perform or to submit to deviate sexual conduct 1 when:
(1) The other person is compelled by force or imminent threat of force;
(2) The other person is unaware that the conduct is occurring; or
(3) The other person is so mentally disabled or deficient that consent to the conduct cannot be given; commits criminal deviate conduct, as class B felony.
There is no evidence that the acts were compelled by force, or threat of force, or that the victim was unaware that the conduct was occurring. Thus, only part (3) of the statute is implicated in this case.
Warrick relies upon Douglas v. State (1985), Ind.App., 484 N.E.2d 610, which states that youth alone does not render the victim "so mentally disabled or deficient that consent to the conduct cannot be given," absent a showing of sub-normal intelligence. The State counters that there was evidence that the victim was not of normal intelligence; the victim had been retained one year in school.
The statute requires that the deficiency be of the nature that consent cannot be given. On page 88 of the record, the trial court states as follows:
For the record, Court specifically finds that a 12 year old boy may not voluntarily submit himself to fellatio from a 46 year old man as to make it a defense to any of defendant's conduct.
For purposes of the child molesting statute, trial court is correct--consent is irrelevant. The legislature has determined in such cases that children under the age of sixteen (16) cannot, as a matter of law, consent to have sexual acts performed upon them, or consent to engage in a sexual act with someone over the age of sixteen (16). I.C. 35-42-4-3. The child molesting statute recognizes that children, because of their immaturity, are incapable of consenting to sexual behavior with adults. Such is the purpose of the child molesting statute, but not the criminal deviate conduct statute.
However the legislature did not provide that the age of the victim is to be considered in determining whether the defendant "consented" to the deviate sexual conduct. Thus, the statute may be used to charge a defendant only when deviate sexual conduct is performed upon a person adult or child, either by force, or threat of force or where "consent" is not possible. The third provision in the statute primarily exists to prevent abuse of persons in our society who, by reason of mental disability, are unable to protect themselves from sexual abuse. While this statute may be applied to protect children under those specific circumstances, the protections are not limited to children. The statute designed to protect children from sexual abuse, including deviate sexual conduct, is the child molesting statute. Smith v. State (1986), Ind.App., 497 N.E.2d 601, 607.
The legislature established a two-part test for the applicability of this provision: 1) the victim must be mentally disabled or deficient; 2) such that consent to the conduct cannot be given. While the State did present evidence of the victim's retention in school, it did not demonstrate that the victim's retention was the result of sub-normal intelligence. Likewise the State did not present any evidence that any inference of "sub-normal intelligence" resulting from the retention satisfies the second prong of the test.
The State also presented evidence below that Warrick had given the victim two (2) beers immediately prior to the first incident. However, there was no evidence that Warrick had given the victim any beer prior to the next two incidents. Also, there was no evidence that the victim had become impaired to the level of "mental disability or deficiency such that consent could not be given." Thus, the State failed to present a prima facie case of Criminal Deviate Conduct and the trial court erroneously denied Warrick's Motion for Judgment on the Evidence as to counts I, II and III. Since we reverse on the Criminal Deviate Conduct counts, we do not consider Warrick's argument that the convictions of both Criminal Deviate Conduct and Child Molesting subjected him to double jeopardy.
Warrick next argues that the State failed to present a prima facie case of child molesting since the State presented no evidence that Warrick fondled or touched the victim with the "intent to arouse or to satisfy the sexual desires of either the child or the older person." Such an argument is without merit. Intent may be established by circumstantial evidence. Kizer v. State (1986), Ind., 488 N.E.2d 704, 707. Intent may properly be inferred from an actor's conduct and the natural and usual sequence to which such conduct reasonably points. Byassee v. State (1968), 251 Ind. 114, 116, 239 N.E.2d 586, 588.
Likewise there was ample evidence to sustain the conviction on counts IV, V and VI. The uncorroborrated testimony of a child victim is sufficient to sustain a conviction of child molesting. Maynard v. State (1987), Ind., 513 N.E.2d 641.
Warrick argues that the prosecutor's conduct in the introduction of evidence constituted prosecutorial misconduct. The test to determine when such misconduct requires a mistrial is as follows:
1. the totality of the circumstances;
2. the probable persuasive effect of the misconduct on the jury's decision; and
3. whether the conduct was repeated so as to indicate a continuing effort by the prosecutor to prejudice and inflame the jury. Mengon v. State (1987), Ind., 505 N.E.2d 788, reh. den.
The alleged misconduct consisted of testimony elicited by the prosecutor from the victim and another State's witness, Sherman Milish, regarding a sexual relationship between Warrick and another adult, who apparently was mentally retarded. During the testimony of the victim, the prosecutor asked the victim a series of questions which elicited that the...
To continue reading
Request your trial
-
Virginia v. Black
...sexual acts performed upon them, or consent to engage in a sexual act with someone over the age of sixteen (16)." Warrick v. State, 538 N. E. 2d 952, 954 (Ind. App. 1989) (citing Ind. Code § 35-42-4-3 (1988)). The legislature finds the behavior so reprehensible that the intent is satisfied ......
-
Lockhart v. State
...from the defendant's conduct and the natural and usual sequence to which such conduct reasonably points. Id.; Warrick v. State, 538 N.E.2d 952, 955 (Ind.Ct.App.1989); see Pedrick v. State, 593 N.E.2d 1213, 1220 (Ind.Ct.App.1992), reh'g denied (holding that intent may be established by circu......
-
Pedrick v. State
...and inferred from the actor's conduct and the natural and usual sequence to which such conduct usually points. Warrick v. State (1989), Ind.App., 538 N.E.2d 952, 955. Here, Pedrick put his arm around the shoulder of M.M. and let his hand hang, touching her breast. He also placed his hand on......
-
U.S. v. Mannava
...Douglas v. State, 484 N.E.2d 610, 612-13 (Ind.App. 1985); Smith v. State, 497 N.E.2d 601, 606-07 (Ind.App.1986); Warrick v. State, 538 N.E.2d 952, 954-55 (Ind.App.1989). By repeatedly accusing Mannava of intending rape, the prosecutor was undoubtedly trying to inflame the jury. The case was......