Weis v. State

• Decision Date: 20 April 2005
• Docket Number: No. 26A01-0409-CR-410.,26A01-0409-CR-410.
• Parties: Michael J. WEIS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

825 N.E.2d 896

Michael J. WEIS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 26A01-0409-CR-410.

Court of Appeals of Indiana.

April 20, 2005.

Nita Davidson Schleter, Fort Branch, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Stephen Tesmer, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

BAILEY, Judge.

Case Summary

Appellant-Defendant Michael J. Weis ("Weis") appeals his convictions for two counts of Child Molesting, as Class A felonies.¹ We affirm.

Issues

Weis raises four issues, which we expand, reorder and restate as the following five issues:

I. Whether the trial court erred in admitting evidence of:

A. Hearsay medical notes; or

B. Improper vouching evidence;

II. Whether the admission of evidence contrary to the Protected Persons Statute, Indiana Code Section 35-37-4-6 constituted fundamental error;

III. Whether the State's closing argument constituted misconduct;

IV. Whether sufficient evidence supports his conviction; and

V. Whether Weis's concurrent forty-year enhanced sentences violate his Sixth Amendment rights outlined in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403.

Facts and Procedural History

On March 21, 2003, the Gibson County Division of Family and Children ("GCDFC") removed seven-year-old J.S. and her half-brother from the home of her mother and Weis, J.S.'s stepfather, after receiving complaints about unsanitary conditions at the home. When interviewed about returning to the Weis's home, J.S. told Juanita Working, the Director of Gibson County CASA, that Weis had molested her. J.S. later described to Gibson County Sheriff's Deputy Deborah Borchelt ("Deputy Borchelt") a pattern of abuse by Weis that began when J.S. was three years old. J.S. told Deputy Borchelt that Weis repeatedly engaged in vaginal, anal, and oral sex with J.S. J.S. also stated that Weis's penis looked like a mushroom with a stem, and described how there were "a ton [of freckles] on the mushroom part." Appellant's App. at 563.

The State charged Weis with four counts of child molesting, two as Class A felonies and two as Class C felonies, and one count of Rape, a Class B felony.² Following a jury trial, Weis was convicted on all counts. Due to double jeopardy concerns, the trial court entered judgment only upon the two convictions for child molesting as Class A felonies. Following the sentencing hearing, the trial court imposed an enhanced sentence of forty-years imprisonment on each count, to be served concurrently. This appeal ensued.

Discussion and Decision

I. Admission of Evidence

A. Standard of Review

The admission of evidence is "left to the sound discretion of the trial court, and we will not reverse that decision except for an abuse of that discretion." Mann v. Russell's Trailer Repair, Inc., 787 N.E.2d 922, 926 (Ind.Ct.App.2003) (quoting State v. Snyder, 594 N.E.2d 783, 787 (Ind.1992)), trans. denied. An abuse of discretion occurs when the trial court's decision is against the logic and effect of the facts and circumstances before it. Id.

B. Analysis

Weis argues that the trial court abused its discretion by: (1) admitting medical notes taken by a hospital nurse but introduced during an examining physician's testimony and (2) admitting testimony of Deputy Borchelt and case manager Anne Sulawske ("Sulawske") intended to bolster the victim's testimony. We address each issue in turn.

1. Medical Notes

Weis first argues that the trial court erred in admitting State's Exhibit 2, which was a copy of a medical record made on May 27, 2003, contending that the exhibit contains inadmissible hearsay evidence that invades the province of the jury. State's Exhibit 2 contains margin notes made by a pediatric center nurse, which states: "Molested by step dad Michael Weis. [H]as been happening off + on since pt was 3 yrs old. [L]ast occurrence was in March...." Appellant's App. at 296.

Initially we note that although Weis objected to the introduction of State's Exhibit 2, he did not object when Dr. Joseph Lazzarra read the margin notes to the jury from State's Exhibit 2, and thus, waived any error as to Dr. Lazzarra's testimony. Reeves v. Boyd & Sons, Inc., 654 N.E.2d 864, 876 (Ind.Ct.App.1995),trans. denied. Waiver notwithstanding, Dr. Lazzarra testified that the medical record was made at the time the nurse interviewed J.S. as part of a typical intake evaluation conducted at his office. Had Weis made a timely objection, the trial court could have admitted State's Exhibit 2 as a business record.³See Ind. Evidence R. 803(6). Further, as the trial court explained for the jury, the margin notes did not constitute hearsay because they were introduced to explain why the doctor conducted his physical examination, not for the truth of the statement. See Appellant's App. at 294. Accordingly, the trial court did not abuse its discretion in admitting State's Exhibit 2.

2. Vouching Testimony

Weis next argues that the testimony of two State witnesses included improper vouching testimony concerning J.S.'s truthfulness, in violation of Indiana Evidence Rule 704(b), which provides: "Witnesses may not testify to opinions concerning intent, guilt, or innocence in a criminal case; the truth or falsity of allegations; whether a witness has testified truthfully; or legal conclusions." To support his argument, Weis cites Jones v. State, 581 N.E.2d 1256, 1258 (Ind.Ct.App.1991), abrogated on other grounds by Steward v. State, 652 N.E.2d 490 (Ind.1995)

.

In Jones, this Court reversed Jones' conviction for child molesting when the trial court allowed, over objection, a police officer to affirmatively answer the question posed by the prosecutor: "In your professional opinion, was [K.J.] sexually molested?" Jones, 581 N.E.2d at 1258. We found that the officer's affirmative answer impermissibly invaded the province of the jury. Id.

Here, Deputy Borchelt testified: "After speaking with [J.S.] I believed that we had evidence of several counts of child molesting, with the different levels of child molesting, your A felony and your C felony. [J.S.] had discussed force and fear and so I believed we possibly had a rape charge in there also." Appellant's App. at 270. Further, Sulawske testified, regarding whether J.S. had been allowed to see Weis after alleging abuse: "Well, certainly with the alleged perpetrator being her stepfather, there is no contact. This is a person who has caused great damage so we don't have any contact." Appellant's App. at 339. Weis contends that their testimony invaded the province of the jury to assess J.S.'s truthfulness.

We must first note that although Weis claims that he made a timely objection, our review of the record reveals that is not the case, and hence, Weis's argument is waived. See Impson v. State, 721 N.E.2d 1275, 1280 (Ind.Ct.App.2000)

. Waiver notwithstanding, neither the testimony of Deputy Borchelt nor Sulawske constitutes an impermissible invasion of the jury's province. Deputy Borchelt explained the course of the investigation after speaking with J.S., and did not specifically state that she believed J.S. Sulawske's testimony explained the GCDFC protocol on restricting visitation between an alleged abuser and victim. This testimony does not run afoul of Rule 704(b). Accordingly, there was no error in the admission of this evidence.

II. Protected Persons Statute

Weis also argues that the trial court erred in admitting previously recorded statements of J.S. contrary to the procedures outlined by the Protected Persons Statute, Indiana Code Section 35-37-4-6,⁴ which provides, in pertinent part:

(a) This section applies to a criminal action involving the following offenses where the victim is a protected person under subsection (c)(1) or (c)(2):

(1) Sex crimes (IC 35-42-4).

* * * * *

(c) As used in this section, "protected person" means:

(1) a child who is less than fourteen (14) years of age;

* * * * *

(d) A statement or videotape that:

(1) is made by a person who at the time of trial is a protected person;

(2) concerns an act that is a material element of an offense listed in subsection (a) or (b) that was allegedly committed against the person; and

(3) is not otherwise admissible in evidence;

is admissible in evidence in a criminal action for an offense listed in subsection (a) or (b) if the requirements of subsection (e) are met.

(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; or

(B) is found by the court to be unavailable as a witness for one (1) of the following reasons:

(i) From the testimony of a psychiatrist, physician, or psychologist, and other evidence, if any, the court finds that the protected person's testifying in the physical presence of the defendant will cause the protected person to suffer serious emotional distress such that the protected person cannot reasonably communicate.

(ii) The protected person cannot participate in the trial for medical reasons.

(iii) The court has determined that the protected person is incapable of understanding the nature and obligation of an oath.

* * * * *

(g) A statement or videotape may not be admitted in evidence under this section unless the prosecuting attorney informs the defendant and the defendant's attorney at least ten (10) days before the trial of:

(1) the prosecuting attorney's intention to introduce the statement or videotape in evidence; and

(2) the content of the statement or videotape.

* * * * *

We note that Weis failed...