Watkins v. State

• Decision Date: 21 May 1991
• Docket Number: No. 79A02-8909-CR-457,79A02-8909-CR-457
• Citation: 571 N.E.2d 1262
• Parties: Arthur WATKINS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). 1 .
• Court: Indiana Appellate Court

Page 1262

571 N.E.2d 1262

Arthur WATKINS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 79A02-8909-CR-457 ¹.

Court of Appeals of Indiana,

First District.

May 21, 1991.

Susan K. Carpenter, Public Defender and David P. Freund, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen. and Geoff Davis, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee.

ROBERTSON, Judge.

Arthur Watkins appeals his conviction and sentencing on three counts of child molesting and a fourth count of being an habitual offender, for which Watkins received a sentence totaling fifty years.

We affirm in part and reverse in part.

Watkins states the issues for review as:

(1) whether the verdicts are supported by sufficient evidence;

(2) whether the trial court denied Watkins due process of law by refusing to allow Watkins to introduce the results of his polygraph examination;

(3) whether the convictions and sentences on all three child molesting counts violate Watkins' constitutional right against double jeopardy; and

(4) whether the sentences imposed are manifestly unreasonable.

In amended count one, the State charged that "[o]n or about the 19th day of November, 1988 in Tippecanoe County, State of Indiana, Arthur J. Watkins did perform and submit to fondling and touching of [J.W.], a child under the age of twelve years of age, with the intent to arouse and satisfy his sexual desires ..." Amended count two alleges that on or about November, 1988, Watkins did knowingly and intentionally attempt to commit the crime of child molesting by knowingly and intentionally engaging in conduct which constituted a substantial step toward the commission of the crime, namely, that Watkins did knowingly and intentionally lie on top of J.W. while J.W. was nude and lying face down and place his penis around and against the anal area of J.W. with the intent to engage in sexual deviate conduct with J.W. Lastly, with respect to amended count three, the State alleged that Watkins did perform and submit to deviate sexual conduct, to wit: an act involving the penis of Watkins and the mouth of J.W., a child under the age of twelve years.

I.

Watkins challenges the sufficiency of the evidence to sustain the verdicts in two respects. First, he contends that there is a total failure of evidence to support the allegations of count III which charged him with child molesting by performing or submitting to deviate sexual conduct with J.W., a child under twelve years. Second, Watkins maintains that the State has also failed to prove by credible, probative evidence the allegations of any of the counts because the only evidence that the acts occurred as alleged came from the victim whose testimony is unworthy of belief as a matter of law. Watkins attacks the testimony offered by the State from pediatrician Beesley on the ground that the doctor's opinion lacks a valid scientific or medical basis.

With respect to the allegations of count III, we have examined the record and indeed have found no in-court testimony from the victim supporting the jury's verdict on that count. However, there is uncorroborated evidence in the form of prior statements from the victim substantiating the charge of deviate sexual conduct involving the mouth of the victim and the penis of the defendant as alleged in count III. The State submits that this evidence can be properly considered as substantive evidence under Patterson v. State (1975), 263 Ind. 55, 324 N.E.2d 482. No challenge is made by Watkins to the admissibility of this evidence. Watkins himself offered into evidence the statements made to police.

It is an abuse of the Patterson rule for the State to put in substantive evidence of the witness-declarant's version of the facts solely through the admission of the witness' prior statement and in lieu of available and direct testimony of the witness. Lewis v. State (1982), Ind., 440 N.E.2d 1125, 1130, cert. denied (1983), 461 U.S. 915, 103 S.Ct. 1895, 77 L.Ed.2d 284. Out-of-court declarations cannot be used as a substitute for available in-court testimony. Edwards v. State (1986), Ind., 500 N.E.2d 1209, 1211. At some point, the State must put the declarant of the prior statement on the witness stand and elicit direct testimony as to the facts at issue. Lewis, 440 N.E.2d at 1130.

In the present case, the State failed to elicit any foundational testimony regarding the conversations between either J.W. and his mother or J.W. and the State's investigators or regarding the content of those conversations. Although J.W. acknowledged on cross-examination that he had in fact given a statement, he did not specifically acknowledge the written statement or his signature on it as the statement he had given. In fact, he either denied making or denied any memory of making many of the statements attributed to him in the document. Watkins did not pursue the factual basis underlying the count III deviate sexual conduct charge when he questioned J.W. about his statements to police and neither did the State. Neither party asked J.W. specifically about the statements attributed to him by his mother, which came into evidence before J.W. testified.

Thus, as in Jackson v. State (1985), Ind.App., 485 N.E.2d 144, trans. denied, we are put in the position of affirming a conviction when the only evidence of an essential element is classic hearsay evidence. "Hearsay evidence, standing alone and not clothed with [the] indicia of reliability associated with the exceptions which may render it admissible, is not sufficient evidence of probative value to sustain a conviction." Id. at 147. Cf. also, Plan-Tec, Inc. v Wiggins (1983), Ind.App., 443 N.E.2d 1212, 1232-33. Accordingly, we conclude that Watkins' conviction of count III cannot stand.

Watkins urges us to reverse the convictions on the other two child molesting counts on the ground that the testimony of J.W. is inherently improbable and unworthy of belief as a matter of law. However, the cases in which we have found testimony of a witness to be inherently improbable or of incredible dubiosity, and hence insufficient to induce a belief of the defendant's guilt beyond a reasonable doubt, have either involved situations where the facts as alleged could not have happened as described by the victim and be consistent with the laws of nature or human experience, see e.g., Penn v. State (1957), 237 Ind. 374, 146 N.E.2d 240 (reversing conviction based solely on prosecutrix's uncorroborated allegations of a consensual menage a trois between the prosecutrix, the defendant, and the defendant's wife), or the witness was so equivocal about the act charged that his uncorroborated and coerced testimony was riddled with doubt about its trustworthiness, see Gaddis v. State (1969), 253 Ind. 73, 251 N.E.2d 658 (reversing conviction based on testimony of witness who had been subjected to pressure and threat of imprisonment if he did not testify). In each of these cases, the victim or witness' testimony was not corroborated by direct or circumstantial evidence and the only evidence of guilt was so lacking in probative value that the court determined it was inadequate to surmount the burden of proof beyond a reasonable doubt.

In the present case, J.W.'s testimony that his father fondled his genitals and placed his "private" in the boy's rectum is substantiated in part by the testimony of J.W.'s mother who told the jury that upon awakening to what she perceived to be sounds of someone having sex in the living room, she turned on the light in her daughters' room, heard scuffling noises, and found her nude, eight-year-old son under a blanket on the living room floor and his father on the couch. Realizing what had been going on, she directed J.W. to the bathroom where she examined him and found a jelly-like substance around his rectum. When J.W.'s mother confronted Watkins about the boy being in the living room without his pajamas on, Watkins explained that J.W. had wet the bed, but when J.W.'s mother checked J.W.'s bedclothes, they were dry.

Without question, the record discloses that J.W. was having difficulty discerning his dreams from reality and had perceived his father performing criminal acts against other children, the circumstances of which are difficult to believe. However, J.W. did not equivocate about the acts which his father performed on the morning in question or about the fact that those events did occur. That J.W. was not dreaming about the charged events is substantiated by his mother's testimony. For these reasons, we must conclude that J.W.'s credibility was properly an issue for the jury and that its verdicts are supported by substantial evidence of probative value.

Watkins spends a substantial portion of his brief challenging the testimony of Dr. Beesley, the pediatrician who examined J.W. at the request of the State. In short, Dr. Beesley opined that the laxity of J.W.'s rectum, an old scar at the 6:00 position, and a slight increase in pigmentation around the anus were conditions which were not "normal" for a child of J.W.'s age and were compatible with repeated abuse or trauma. Watkins contends that Dr. Beesley's testimony is lacking in probative value because his opinion does not have a scientific or medical basis. He offers an article from a legal publication in which the author suggests, among other things, that unsupported claims can be passed off as medical evidence because physicians have no way of checking the accuracy of their conclusions, which are often colored by the history given them from the victim. Until a range of normality has been established based upon empirical research, what is perceived by physicians "experienced" in detecting sexual abuse as "consistent with" sexual trauma might in fact be consistent with the population as a whole and hence, nonabuse.

At trial, Watkins did not challenge Dr. Beesley's qualifications as an expert, the foundation...