Young v. State

• Decision Date: 04 May 2001
• Docket Number: No. 49S00-0001-CR-32.,49S00-0001-CR-32.
• Citation: 746 N.E.2d 920
• Parties: Steve L. YOUNG, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

746 N.E.2d 920

Steve L. YOUNG, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 49S00-0001-CR-32.

Supreme Court of Indiana.

May 4, 2001.

Terry R. Curry, Indianapolis, IN, Attorney for Appellant.

Karen M. Freeman-Wilson, Attorney General of Indiana, Priscilla J. Fossum, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee. BOEHM, Justice.

Steve Young was convicted of two counts of child molesting and of being a habitual offender. He was sentenced to concurrent terms of fifty and thirty years. The fifty-year sentence was enhanced by thirty years for the habitual offender conviction resulting in an aggregate sentence of eighty years imprisonment. In this direct appeal, he contends that (1) the trial court abused its discretion by denying his motion for DNA testing; (2) the trial court erred by granting the State's motion in limine to preclude evidence regarding prior false accusations by the victim; (3) the State engaged in prosecutorial misconduct; and (4) trial counsel was ineffective. We affirm the judgment of the trial court.

Factual and Procedural Background

Young, Erica Riley, and Riley's father lived together with Riley's seven children, three of whom were Young's. On the night of March 29, 1997, Riley left the house and her children in Young's care. After the children were ready for bed, they and Young went into Riley's bedroom for "treats." Young gave sweets to some of the children and offered candy or money to L.R., Riley's eleven-year-old daughter, if she would put on Riley's nightgown. When L.R. refused, Young kept her in the room as the other children left. Young secured the door and then pushed L.R. onto the bed and penetrated her vaginally and anally. When the assault was over, he told L.R. to take a shower. L.R. showered and fell asleep before her mother returned home.

The next morning L.R. told her mother what had happened. Riley did not believe L.R. and took her to the hospital for a physical exam. The examination uncovered physical injuries consistent with L.R.'s description of the events, including a superficial tear to L.R.'s anus, hypopigmented inner labia, redness around L.R.'s hymenal edge, and abnormal vaginal discharge. A rape kit was assembled. No seminal fluid was found on either the oral or vaginal slides, but spermatozoa were found on the rectal slide.

Young was charged with two counts of child molesting. Both the State and Young requested DNA testing on the rectal slide, but Dr. Mohammad Tahir, the Technical Manager of the Marion County Crime Laboratory, determined that the small number of sperm rendered any testing unreliable. At trial, L.R. testified to the events as described above. She also testified that her grandfather and her brother heard her screaming when Young attacked her and they attempted to get inside the bedroom. Her grandfather denied hearing any screams on the night of the attack. At trial, her brother, Delance, also denied hearing L.R.'s screams. However, Delance agreed that he had told police in a statement made shortly after the attack that he had heard his sister scream. Young was convicted of both counts of child molesting, found to be a habitual offender, and sentenced to eighty years imprisonment. Young then filed a motion to correct error, contending that his trial counsel was ineffective. The trial court held a hearing on this motion and denied it in a written order.

I. DNA Testing

Young first claims that the trial court abused its discretion by denying his pretrial motion to compel DNA testing of the sperm sample taken from L.R.¹ The State's response to the motion asserted that it did not control the Crime Lab and any motion to compel must be directed to the laboratory. The State also claimed, without evidentiary support, that it had been advised by the laboratory that no reliable test could be performed. We think it is obvious that it would be an abuse of discretion to deny an impecunious defendant funding for a potentially exculpatory DNA test. Cf. Sewell v. State, 592 N.E.2d 705 (Ind.Ct.App.1992)

(granting postconviction discovery of DNA where the conviction predated DNA technology and identification was the principal issue). But that is not what happened here. On August 13, the trial court denied Young's motion. The court later, by minute entry, directed the State "to submit [an] affidavit from the doctor about DNA testing." In an affidavit filed on December 8, 1998, Tahir stated that the sample in this case contained eight spermatozoa and "we will not perform DNA typing analysis on a specimen which contains less than approximately fifty (50) Spermatozoa to obtain a reliable result...."

The trial court has broad discretion in dealing with discovery violations and may be reversed only for an abuse of that discretion involving clear error and resulting prejudice. Berry v. State, 715 N.E.2d 864, 866 (Ind.1999). It was not an abuse of discretion for the trial court to refuse to expend public funds on a test that the record before the trial court indicated would produce no reliable evidence. Cf. Graham v. State, 535 N.E.2d 1174, 1175-76 (Ind.1989)

. The trial court sua sponte supplemented the record with Tahir's affidavit, and Young provides nothing to the contrary. If Young wished to dispute this claim of unreliability, he was free to do so. On this record, we find no abuse of discretion in refusing to fund testing.

II. Prior Accusations of Molestation

Young next claims that the trial court erred by sustaining the State's motion to exclude evidence of L.R.'s prior false allegations of molestation. By motion in limine, the State requested exclusion of this evidence. At the motion in limine hearing, Young's counsel stated that he intended to offer a statement by L.R. to Delance that L.R. intended to "lie on" Young. The trial court ruled that this testimony would be admissible. At trial, L.R. denied making such a statement, and the subject was not raised with Delance. As to the claim of L.R.'s false allegations against other men, the trial court took the view that evidence of this sort would result in a trial within a trial as to whether L.R. made any such allegations and, if so, as to the truth or falsity of L.R.'s accounts of these other incidents. The trial court ruled on the motion in limine that the defense would have to ask for relief if it sought to admit that evidence. This was never done, so we have no idea what form this evidence, if it exists, would have taken. As a result, we have no basis to evaluate the degree to which the evidence would have complicated this trial. In the hearing on the motion to correct error, Young's counsel testified and again referred to L.R.'s prior accusations of molestation by others, but again gave no specifics. Failure to make an offer of proof of the omitted evidence renders any claimed error unavailable on appeal unless it rises to the level of fundamental error. Miller v. State, 716 N.E.2d 367, 370 (Ind.1999); Perkins v. State, 483 N.E.2d 1379, 1384 (Ind. 1985).

To constitute fundamental error, the "defendant must show that the error was a substantial and blatant violation of basic principles which rendered the result of the trial unfair." Roach v. State, 695 N.E.2d 934, 942 (Ind.1998). Even after the motion to correct error hearing, it is entirely unclear from the record what evidence, if any, Young would have presented. As a result, we cannot determine that the result of his trial was unfair. Young also makes the bald allegation on appeal that, "the potential for harm to Young by such exclusion cannot be denied." Although this may be true if the evidence exists, there is no offer to prove that it does exist, or if it does, what it is.

III. Prosecutorial Misconduct

Young claims that the State engaged in prosecutorial misconduct by suggesting that statements made by the victim's brother Delance were substantive evidence that corroborated L.R.'s version of the attack. A claim of prosecutorial misconduct requires a determination that there was misconduct by the prosecutor and that it had a probable persuasive effect on the jury's decision. Marcum v. State, 725 N.E.2d 852, 858 (Ind.2000).

During closing argument, the State said:

And Delance told us that just a day after this allegedly occurred, not even, not even twenty-four hours, he talked to Det. Cathy Graban in this case, and he told her that he heard screams. Something was going on in that room.

....

Did [L.R.] scream out loud? Well, that's what Delance said the day after.

At trial, Delance testified that he heard no screams or noise coming from the bedroom during the attack. He also claimed no memory of having told the police of hearing screams. The State presented Delance with a transcript of his statement to police on the day following the incident in an effort to refresh his recollection. Although the term "refresh recollection" was not used, use of the transcript for this purpose was appropriate. See 13 Robert Lowell Miller, Jr., Indiana Practice § 612.101 (2d ed. 1995) ("If the witness replies that the writing has refreshed his memory, he may be examined on the subject but may not testify from the writing itself.").² Delance then admitted that he had told the officer of screaming on the night of the incident. The obvious next question was whether he was truthful in his statement to the officer. That question was not asked.

Young contends that Delance's admission that he made the prior statement was not admissible for the purpose cited by the prosecution, i.e., to prove that Delance heard screaming. He is correct that the admissible evidence (Delance's statement on the stand, not the transcript) established only that Delance reported screaming to the officer, not that it was true that he heard screaming on the night of the assault. Young correctly points out that the testimony did not satisfy the requirements of Indiana Evidence Rule 801(d)(1)(A) if offered to prove that Delance heard...