Petition for Writ of Certiorari — Andrews v. Indiana

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1989

JAMES MURVEL ANDREWS, Petitioner

V.

STATE OF INDIANA, Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE

STATE OF INDIANA

Frank J. Gray, Esq.

Attorney at Law

1316 Anthony Wayne Bldg.

Fort Wayne, IN 46802

(219) 423-3392

ATTORNEY FOR PETITIONER

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QUESTION PRESENTED

Whether petitioner's Sixth and

Fourteenth Amendment rights to a fair and

impartial jury trial are denied when a State

Court Trial Judge refuses to excuse an active

duty police officer who is employed in the

county where the trial is taking place from

the petitioner's criminal jury panel.

FER SO OL Ta Te

TABLE OF CONTENTS

QUESTION PRESENTED. . ... « «

PETITION FOR WRIT OF CERTIORARI

OPINION BELOW . . 2. «© «© «© © «© «

JURISDICTION. .« . «© «© © © © « «

CONSTITUTIONAL PROVISIONS

INVOLVED e ° . ° . * . . .

STATEMENT OF THE CASE .... -

REASONS FOR GRANTING THE WRIT .

CONCLUSION. . . « «© © © © © © «

APPENDIX A

APPENDIX B

ii.

PAGE NO.

14

oases

TABLE OF AUTHORITIES

I. CASES.

Cavness v. U.S. (9th Cir. 1951)

j F.2d 719, cert. den. 341

U.S. 951, 95 L.Ed. 1374,

71 S. Ces 1019. . . . . . ” . —

Cawthon v. State (1934) 115 Fla.

Ol, 156 So. 129. e o . . . ° e

Groppi_v. Wisconsin (1971) 400

PLL 27 L.Ed.2d 571,

575, 91 S.Ct. 490, citing

Irwin v. Dowd, 366 U.S. 717,

6 L.Ed. 2d ia » Vee, Bi 8.Ct.

16393. > a o . . > _ o o _ o 7

Irwin v. Dowd, 366 U.S. 717,

6 L.Ed.2d 751, 755, 81 S.Ct.

1639. _ . oe . . . 7. o . 2 o > =

Parks v. State (1986) 178 Ga.

Mis SEte Bee Mimaae B24. 3 3

Rideau v. Louisiana (1963) 373

U.S. 723, 10 L.Ed.2d 663,

83 fn FF 1417 . _ > o _ = oe ” 7

Ri v. State (1977, Tenn.)

S.W. d 6. - _ o _ - . . .

State v. Langley (1938) 342 Mo.

Sats See ee a Sh es eS 8

State v. Mitchell (1985, La. App.

2d Cites 475 So.2d 61 . + . e .

State v. West (1973 W.Va.)

200 S.E.2d 859. . . J . . . o e .

£04,

Page No.

° 10

° 13

° 8

. 9

° 13

° 10

. aa

. 12

° 13

° 13

ee we.

ee” ee

Tate v. People (1952) 125 Colo.

’ P. d 665. * 28©-= © e@# e@# #

Tripe ve. State (1937) 63 Okla.

Cr m. ’ 72 P2d 529 e ° ° . 7

U.S. v. McCord (5th Cir. 1983)

F. , 827, cert. den.

460 U.S. 1073, 193 S.Ct. 1533,

75 L.Ed.2d 953 (1983). . ~ - « «

U.S. v. Wood (1936) 299 U.S. 123,

140 note 9, 141 57 S.Ct. 177,

81 L.Ed. 78. o . _ o _ - > . - *

II. STATUTES.

28 U.S.C. Sec. 1254(1). « « « «

28 U.S.C. Rule 20(1). . . . e e ©

III.MISCELLANEOUS. S,

Sixth Amendment to the United

States COMSBCiGution. « « 2« «© « «

Fourteenth Amendment to the

United States Constitution...

U.S. Constitution, Amendments

VI and XIV _ + . .* 7 — J oe . . ec

72 ALR3d 895, 908. * sd . a . . . .

iv.

“De

« ke

“Soe

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. 2

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. 3

. 3

. 8

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Aid Aad

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1989

JAMES MURVEL ANDREWS, Petitioner

Vv.

STATE OF INDIANA, Respondent

PETITION FOR A WRIT OF

CERTIORAR1 TO THE SUPREME

COURT OF THE STATE OF INDIANA

The petitioner, James Murvel Andrews,

respectfully petitions for a writ of

certiorari issue to review the judgment and

opinion of the Supreme Court of the State of

Indiana entered on June 27, 1989 and the

Court of Appeals of the State of Indiana

entered October 19, 1988 affirming the

judgment entered on January 16, 1987 and the

sentence imposed on February 20, 1987 by the

l.

Noble Circuit Court, Noble County, Indiana.

OPINION BELOW

The published opinion of the Court of

Appeals of the State of Indiana which was

affirmed by the denial of transfer to the

Supreme Court of the State of Indiana appears

in the Appendix hereto together with the

Order of the Supreme Court of the State of

Indiana denying transfer. The opinion of the

Court of Appeals which was affirmed by the

Indiana Supreme Court is.reported at 529

N.E.2d 360.

JURISDICTION

The opinion and judgment of the Court of

Appeals of the State of Indiana was entered

on October 19, 1988 and the Supreme Court of

the State of Indiana denying the petitioner's

petition to transfer (thereby affirming the

conviction) was entered on June 27, 1989,

The jurisdiction of this court is invoked

pursuant to 28 U.S.C. Sec. 1254(1) and Rule

2.

ed ee Tare wilh Was ade” emebeludie’

20(1) of the Rules of this Court.

CONSTITUTIONAL PROVISIONS INVOLVED

The Sixth Amendment to the United States

Constitution provides in relevant part:

"In all criminal prosecutions,

the accused shall enjoy the right

to a speedy and public trial, by

an impartial jury of the State and

district wherein the crime shall have

been committed. . ."

The Fourteenth Amendment to the United

States Constitution provides in relevant

part:

". »« « No State shall make or

enforce any law which shall abridge

the privileges or immunities of

citizens of the United States; nor

shall any State deprive any person

of life, liberty, or property, with-

cut due process of law; nor deny to

any person within its jurisdiction

the equal protection of the laws."

STATEMENT OF THE CASE

Petitioner was arrested on a twelve (12)

Count Criminal Information filed June 6, 1985

in the Noble County, Indiana Circuit Court,

charging him with two (2) Counts of Class B

3.

Felony Child Molesting, Three (3) Counts of

Class C Felony Child Molesting, one (1) Count

of Class C Felony Attempted Child Molesting,

four (4) Counts of Class D Felony Incest,

one (1) Count of Class D Felony Child

Molesting and one (1) Count of Class D Felony

Attempted Incest.

Petitioner..entered a plea of not guilty

and on January 13, 1987, the parties appeared

for trial. The jurors were sworn as to their

competency and to perform their duties. (Tr.

171)

During the selection of the jury, the

Federal question raised herein was brought to

the attention of the court. The question was

preserved on the record and raised in

petitioner's appeals later filed in the Court

of Appeals and Supreme Court of the State of

Indiana.

With one remaining pre-emptory challenge,

the petitioner asked the court to dismiss for

cause a juror who acknowledged being an

4.

active police reserve officer for the town of

Albion which is located within Noble County,

the site of the trial.

Juror Robert Noe was an active police

officer employed with the Albion Police ’

Reserves for the City of Albion, Indiana.

Albion, Indiana is the county seat of Noble

County, Indiana which was the venue for the

trial of this case. The State was |

represented by a Deputy Prosecuting Attorney

from Noble County, Indiana. Opinion, '

Appellate Court, p. 3, Appendix A attached

hereto.

Mr. Noe stated that he was a member of

the Albion Police Reserves and had been for

eight years (R.- 422-423). He said that his

duties as such included security for ball

games and dances (R. 423). When asked if he 4

had been empowered by being sworn in, Mr. Noe

stated, "Yes. I guess if it came down to it

we have powers of arrest." (R. 423). Mr.

Noe was then questioned as to whether his

5. :

position on the reserves would have an

influence on his position as a juror: —

MR. GRAY: Now as a, as an officer

with police powers, in a criminal

case, do you feel that you're not

going to be -- do you feel that

you're going to be inclined to

believe the Prosecutor's case since

that's who you'd be working with as

a police officer?

NOE: Being charged isn't guilty...

MR. GRAY: Okay, do you feel that you

would still be able to be a fair

and impartial and unbiased juror

in a criminal case sitting as a

_ ss ipolice officer?

NOE: Yes.

(R. 423-425).

In a hearing out of the presence of the

jury, the Judge denied petitioner's request

for challenge for cause (R. 451). The Trial

Judge noted that the Police Reserve in Albion

6.

basically provides service for crowd and

traffic control at ball seeps and parades and

therefore had arrest power only to the extent

of controlling these particular functions

assisting the regular police force and since

Mr. Noe had testified he would be fair and

impartial there would be no bias or prejudice

on his part (R. 450). Petitioner then

exercised his final pre-emptory challenge and

Mr. Noe was dismissed (R. 448-449).

The jury returned a verdict convicting

defendant of Counts I and II, Child Molesting

as a Class B Felony, Counts V, VI and X,

Child Molesting as a Class C Felony and

Counts III, IV, VII, VIII, IX and XI, Incest

as a Class D Felony.

On February 20, 1987, defendant was

sentenced to ten (10) years on Count I, ten

(10) years on Count II to run concurrent with

Count I, two (2) years on Count III, to run

concurrent with Count I, two (2) years on

Count IV, to be concurrent with Count I, five

7.

(5) years on Count V, five (5) years on

Count VI, to run concurrent with Count V, two

(2) years on Count VII, to be concurrent with

Count V, two (2) years on Count VIII, to be

concurrent with Count V, two (2) years on

Count IX to be concurrent with Count V, five

(5) years on Count X and two (2) years on

Count XI, to be concurrent with Count X.

REASONS FOR GRANTING THE WRIT

The Fourteenth Amendment to the

Constitution of the United States guarantees

the Sixth Amendment right of an impartial

jury to the accused in all criminal

prosecutions. U.S. Constitution, Amendments

VI and XIV. "In essence, the right to a jury

trial guarantees to the criminally accused a

fair trial by a panel of impartial,

indifferent jurors. The failure to accord an

accused a fair hearing violates even the

minimal standards of due process." Groppi

v. Wisconsin (1971) 400 U.S. 505, 27 L.Ed.2d

8.

571, 575, 91 S.Ct. 490, citing Irwin v. Dowd,

366 U.S. 717, 6 L.Ed.2d 751, 755, 81 S.Ct.

1639.

The petitioner submits that his right to

a “fair trial by a panel of impartial,

indifferent jurors" was denied when the Trial

Court Judge refused to strike for cause a

juror who was an active duty reserve police

-officer in the county in which the case was

tried. Opinion of the Indiana Court of

Appeals, Third District, dated October 19,

1988 at page 3 (Appendix A attached hereto).

The petitioner submits such a denial denied

him the right to a fair trial as guaranteed

by the United States Constitution.

The petitioner challenged juror Robert

Noe for cause at the time the jury was being

selected because of his police-related

employment (See Record, p. 450-451). The

court denied petitioner's request for the

challenge for cause and petitioner was

required to use his last pre-emptory

9.

challenge to strike the police officer from

the panel and was unable to use the pre-

emptory challenge on other jurors.

Petitioner maintains that an active

reserve police officer with arrest powers who

is employed in the county in which a criminal

case is being tried should be dismissed for

cause from any jury that will deliberate a

criminal matter in that county.

In Rideau v. Louisiana (1963) 373 U.S.

723, 10 L.Ed.2d 663, 83 S.Ct. 1417, Justice

Clark in his dissenting opinion implied that

jurors who held honorary Deputy Sheriff's

commissions from the local Sheriff's

Department but neither made arrests nor

received pay were not disqualified from

serving as jurors. In that opinion, however,

the primary issue being resolved was one of

juror exposure to pre-trial publicity.

This court has also denied a petition for

a Writ of Certiorari in Cavness v. U.S. (9th

Cir. 1951) 197 F.2d 719, cert. den. 341 U.S.

10.

a's Cee |

951, 95 L.Ed. 1374, 71 S.Ct. 1019, in which a

@ iuror who was a reserve police officer in the

Honolulu Police Department did not disclose

that information during the jury selection

process in a Federal Criminal case. That

court held that no bias or prejudice “will be

presumed from the mere fact of being a

reserve police officer". Cavness v. U.S.,

supra, p. 723, citing U.S. v. Wood (1936) 299

U.S. 123, 140 note 9, 141 57 S.Ct. 177, 81

L.Ed. 78.

In U.S. v. McCord (5th Cir. 1983) 695

F.2d 823, 827, cert. den. 460 U.S. 1073, 103

S.Ct. 1533, 75 L.Ed.2d 953 (1983), defendant

was convicted of unlawful flight to avoid

confinement. The defendant challenged four

jurors for cause of which the following first

two (2) served on the jury and the remaining

two (2) did not. Their association with law

enforcement work was as follows:

(a) An employee of the Department of

Corrections.

ll.

(b) A volunteer member of the Sheriff's

flotilla (a type of natural

emergency or disaster force).

(c) A volunteer part-time Deputy

Sheriff at another office.

(d) A retired reserve Deputy Sheriff.

The court held ". . . one's official

position as a member of the law enforcement

community does not require a court in the

exercise of its discretion to excuse a juror

for cause where the juror has stated that he

or she could remain impartial." McCord, supra

p. 828.

Other jurisdictions, however, have

concluded that being a police officer, in and

of itself, presents a case of implied bias

and a violation of certain State

Constitutional rights to an impartial jury

and, therefore, the police officer should be

removed from petit and grand juries. Tate

ve. People (1952) 125 Colo. §27, 247 P.2d 665.

State v. Langley (1938) 342 Mo. 447, 116

12.

S.W.2d 38. Parks v. State (1986) 178 Ga.

App. 317, 343 S.E.2d 134. Rippy v. State

(1977, Tenn.) 550 S.W.2d 636. State v.

* Mitchell (1985, La. App. 2d Cir.) 475 So.2d

61. 72 ALR3d 895, 908.

Certain states even preclude those

officers from serving on such a panel by

statutes disqualifying them from jury

service. Tripp v. State (1937) 63 Okla.

Crim. 41, 72 P2d 529. Cawthon v. State

(1934) 115 Fla. 801, 156 So.129.

The State of West Virginia has also

determined that there is a common law rule

4 disqualifying law enforcement officers from

serving as jurors in criminal cases. State

v. West (1973 W.Va.) 200 S.E.2d 859.

Petitioner contends that the better

reasoned argument is to exclude active police

officers with arrest powers who work in the

county (and with the local Prosecutors on

arrests) in which the case is being tried

from criminal jury panels. The on-going law

13.

enforcement relationship between the local

prosecutor and local police officers is one

that generates a biased relationship that

cannot be ignored and which deprives the

petitioner of his right to an impartial jury.

.CONCLUS ION

-~ For the foregoing reasons, a writ of

certiorari should issue to review the

judgment and opinion of the Court. of Appeals

and Supreme Court of the State of Indiana.

Respectfully submitted,

~

Frank J. Gray

1316 Anthony Wayne Bldg.

Fort Wayne, IN 46802

Telephone: (219) 423-3392

ATTORNEY FOR PETITIONER

Linley E. Pearson, Esq.

Attorney General

State House

200 W. Washington St.

Indianapolis, IN 46204

(317) 232-6201

ATTORNEY FOR RESPONDENT

14,

APPENDIX A

PUBLISHED OPINION OF THE APPELLATE COURT

A NDIANA

Ind. ’ 529 N.E.2d 360

Na

ree

STATE OF INDIANA

CLERK OF THE APPELLATE COURT

Daniel Rock Heiser, Clerk

217 State House

Indianapolis, IN 46204

Cause No. 57A03-8801-CR-1

LOWER CAUSE

CR-85-4

JAMES MURVEL ANDREWS V. STATE OF INDIANA

You are hereby notified that the Court

of Appeals has on this day October 19, 1988

issued the enclosed opinion. :

WITNESS my name and the seal of this

‘Court this 19th day of October, 1988.

at. Heiser

erk, Court of Appeals

es

GE SN MOT I Te eee ERAN A. STEPS RC SRR aT Ee aD ee

JAMES MURVEL ANDREWS,

Defendant~Appellant

VSe

STATE OF INDIANA,

Plaintiff-Appellee

No. 57A03-8801-CR-1

IN THE COURT OF APPEALS OF INDIANA

THIRD DISTRICT

October 19, 1988

APPEAL FROM THE NOBLE CIRCUIT COURT

The Honorable Robert C. Probst, Judge

Cause No. CR-85-4

GARRARD, P.J.

A Noble Circuit Court jury convicted

James Andrews (Andrews) of two counts of

class B felony child molesting (counts I and

II), three counts of class C felony child

molesting (V, VI and IX), and six counts of

class D felony incest (III, IV, VII, VIII, X,

XI). The court sentenced Andrews to ten

years imprisonment on count I, an additional

five years on count V, and another five years

on count X:; The court also sentenced him to:

(a) ‘ten years on count II and two years on

count IV, to run concurrent with the sentence

for count I; (b) five years on count VI, two

years on count VII, two years on count VIII,

and two years on count IX, to run concurrent

with the sentence for count V; and (c) two

years on count XI, to run concurrent with the

sentence for count X. Andrews appeals his

convictions. We affirm.

Issues;

Andrews raises eleven separate issues

for review. They are as follows:

1) whether the trial court erred in

denying defense counsel's challenges

for cause of two prospective jurors;

2) whether the court erred in.denying a

-defense motion for a judgment of

acquittal offered on the ground that

the State had failed to prove

proper venue on counts X and XI;

3) whether the court erred in denying a

defense motion for a judgment of

acquittal offered on the ground that

the State had failed to prove that

Andrews engaged in any specific act

of oral sex or intercourse with his

daughter Therisa prior to her

twelfth birthday;

~

enna gee Pe eR ALT PURE

4)

5)

6)

7)

8)

9)

10)

whether the court erred in allowing

rebuttal testimony by Andrews's

former mother-in-law;

whether the court erred in denying a

defense motion for a mistrial

offered on the ground that the State

improperly introduced testimony by

Andrews‘'s daughter Kimberly that

Andrews had repeatedly touched her

vagina, an act not charged in the

information filed against Andrews;

whether the court erred in

overruling a defense objection to a

question asked by the State to

defense witness Sandra Dewart

concerning her opinion about

Andrews's propensity for physically

abusing his children;

whether there was insufficient

evidence on which the jury could

have found Andrews guilty of the

charges against him;

whether the court erred in denying a

defense motion to dismiss the

State's amended information for

failure to identify the precise

dates on which the acts alleged in

counts I through VIII occurred;

whether two erroneous statements

made by the prosecutor in his

closing argument constituted

fundamental error thereby

necessitating reversal;

whether the court erred in refusing

to give the defensz's tendered

instructions 3, 5, and 7 and in

giving both its own instruction 15

and the State's tendered

=

instructions 6 and 8; and

11) whether the court erred in imposing

consecutive sentences on counts I, V

and X.

Discussion and Analysis:

Andrews's arguments and our analyses of

those arguments are as follows:

1) The trial court erred in denying

defense challenges for cause of two

prospective jurors. Andrews argues that the

court should have dismissed for cause juror

Robert Noe, an active police officer with the

Albion Police Reserves, because to permit a

police officer employed in the county wherein

Andrews was prosecuted to sit as a juror at

Andrews's trial was per se prejudicial. We

disagree.

Our basis for review of a trial court's

ruling on a defendant's challenge for cause

is abuse and discretion. Morgan v. State

(1981), 275 Ind. 666, 419 N.E. 2d 964;

Atkinson v. State (1980), Ind. App., 411 N.E.

2d 651. Further, we do not reweigh the

abe

evidence but consider only that evidence

favorable to the appellee. Godfrey v. State

(1978), 177 Ind. App. 644, 380 N.E. 2d 621,

trans. denied. Using this standard, we

conclude that the trial judge acted well

within his discretionary authority in

determining that since: a) the duties of the

police reserves in Albion are to provide

crowd and traffic control at athletic events

and parades, b) they have arrest powers only

in connection with crowd disturbances and

traffic violations, and c) juror Noe

testified that his position as a reserve

police officer would not prevent him from

being impartial as a juror. Noe should not

be removed for cause.

In an analogous case, Porter v. State

(1979), Ind., 391 N.E. 2d 801, the defense

argued that the trial court had erred in

refusing to remove for cause a juror who was

a volunteer special deputy county sheriff.

The Indiana Supreme Court disagreed, saying:

==

Sas a

There was no evidence presented to

show that this juror had any interest or

any feeling one way or the other about

this case. We. . . cannot say that the

court abused its-discretion, after

observing the interrogation of this

juror, in overruling the challenge for

cause directed to him. We do not find

reversible error on this issue.

Id. at 817. In this case, as in Porter, the

challenged juror's link to the prosecution is

so tenuous as to contain no implication of

bias whatsoever, hence there is no evidence

to suggest that the trial judge abused his

discretion in denying the challenge of Mr.

Noe.

Similarly, the trial judge acted

reasonably in denying a defense challenge for

cause of juror Deborah Ackerman, whose

brother-in-law was a deputy sheriff. Like

Noe, Ackerman possessed only a tenuous link

to the prosecution, represented by a brother-

in-law whom, according to her testimony, she

seldom saw. Moreover, there was no evidence

to indicate that Ackerman's brother-in-law

was investigating this case (of. Woolston v.

~ a

ee ee ee ES A ee eT ee SR Ry ee ee, eee eee

State (1983), Ind., 453 N.E. 2d 965, where

the challenged juror's wife was an employee

of the state police and had typed veral

evidentiary documents for the trial). Thus,

Ackerman's link to the sheriff's department

was too remote to support a presumption of

bias in favor of the State. Smith v. State

(1985), Ind. App., 477 N.E. 2d 311. The

court acted properly in denying a challenge

of Ackerman for cause.

2) The court erred in denying a defense

motion for a judgment of acquittal offered on

the ground that the State failed to prove

proper venue on counts X and XI, which

alleged-the commission of incest with Laura

Andrews at Ed Chapman's residence in Noble |

County when, in fact, that residence is

located in Whitley County. We disagree.

I.C. 35-1.1-2-1(d) (Burns Repl. 1979)

states: "If the commission of an offense is

commenced in one county and is consummated in

another county, trial may be had in either of

-

the counties." The record indicates that

Andrews formed, in Noble County, the criminal

intent-to commit incest and that he

transported the victim from Noble County to

Whitley County the next day and committed the

offense. The victim testified that on her

birthday, July 7, 1984, her father told her

that he would give her a present the

following day, but that she would not be able

to receive it until she and her father were

alone. On July 8, Andrews told her that he

wanted her to accompany him to Ed Chapman's

farm, as he had tc help Chapman with farm

work. She accompanied him to the Chapman

farm where they had intercourse in the barn.

Andrews's actions in telling his

daughter, whom he had a history of molesting,

that he planned to give her a birthday

present the following day, when they were

alone, and in driving her the next day to a

secluded locale, where they had intercourse,

comprise a single chain of events. The

=-8-

conversation that occurred in Noble County

between Andrews and the victim was integrally

related to the incest that occurred the next

day in Whitley County. "Recent cases have

shown that when the various acts which

comprise the crime are part of the ‘single

chain of events," the charge may be brought

in the county where the acts began or ended.

Osborne v. State (1981), Ind., 426 N.E. 2d

20; French v. State (1977), 266 Ind. 276, 362

N.E. 2d 834; Spoonmore v. State (1980), Ind.

App., 411 N.E. 2d 146." Sears v. State

(1983), Ind., 456 N.E. 2d 390, 391.

In reaching this conclusion, we reject

Andrews's argument that the State failed to

show that he used any force or coercion in

transporting the victim to Whitley County.

Although Andrews did not abduct the victim,

he possessed the power over her that a parent

customarily possesses over a child and that

commonly causes a child to accede to the

parent's wishes. Moreover, the record

=<

indicates that Andrews had threatened to kill

her if she revealed his incestuous behavior

and that she believed he would indeed kill

her under those circumstances because he had

always carried out his threats of physical

punishment in the past.

We conclude that Noble County was a

proper venue in which to try Andrews on

counts X and XI.

3) The court erred in denying the

defense's motion for a judgment of acquittal,

which had been offered on the ground that the

State failed to prove that Andrews had

engaged in any specific act of oral sex or

intercourse with another victim prior to her

twelfth birthday. We disagree.

The State presented sufficient evidence

for the jury to find that Andrews did indeed

engage in oral sex and intercourse with this

victim prior to her twelfth birthday, thereby

warranting his conviction for class B felony

child molesting. The girl testified that

=1Q-

Andrews engaged in these acts with her, at

least weekly, from early in 1979 until

February of 1985. She also testified that

these acts occurred both before and after her

twelfth birthday.

In light of this evidence, a directed

verdict of acquittal was unwarranted in this

case.

A directed verdict of acquittal can

only be given where there is a total

lack of evidence on some essential

issue, or where the evidence is

susceptible of only one inference, and

that being in favor of the accused.

Carroll v. State (1975), Ind., 338 N.E. 2d

264, 272. Such is not the case here.

Moreover, the general standard of review

in this state regarding sufficiency of

evidence in criminal cases has long been that

[i]Jf there is substantial evidence of

probative value from which the jury

could have inferred guilt, the

conviction will stand. A verdict on

which reasonable men might differ will

not be set aside. It is only where no

reasonable man could find that the

evidence presented proves the accused

guilty beyond a reasonable doubt that a

verdict is not sustained by sufficient

evidence. Phelps v. State (1983), Ind.

=3 la

App.» 453 N.E. 2d 350; Covington v.

State (1975), 262 Ind. 636, a55 N.E. 2d

705; Hutchinson v. State (1967), 248

Ind. 226, 225 N.E. od 628.

Walters v. State (1986), Ind., 495 N.E. 2d

734, 736.

Applying the above standards, we

conclude that the State presented sufficient

evidence of probative value to prove that

Andrews had oral sex and intercourse with

this victim prior to her twelfth birthday and

that the trial court properly denied his

motion for a judgment of acquittal.

4) The court erred in permitting

rebuttal testimony by Andrews's former . ;

mother-in-law. Andrews argues that Mrs.

Dorothy Eichman's testimony that, in 1974,

Andrews had propositioned her while he was

married to her daughter was of no probative

value due to its remoteness in time. He

further contends the testimony was improper

because it permitted impeachment on

collateral matter. See. e.g., Hudson v.

State (1986), Ind., 496 N.E. 2d 1286.

@) 2=

bili

:

eS Ny eer Ste OO ES Ee eS ee ee ee eS A — ae oe — — > —— |

ae a as se eee” he

When faced with 4n objection to the

admission of evidence on grounds that that

evidence is too remote, a trial court has

wide discretion concerning its exclusion.

Byran v. State (1983), Ind., 450 N.E. 2d 53;

Allen v. State (1982), Ind., 431 N.E. 2d 478;

Grey v. State (1980), Ind., 404 N.E. 2d 1348;

Austin v. State (1974), 262 Ind. 529, 319

N.E. 2d 130, cert. denied 95 S. Ct. 2417, 421

U.S. 1012, 44 L. Ed. 2d 680. The decision

whether to exclude evidence as remote will be

reversed on appeal only when an abuse of

discretion is clearly demonstrated. State v.

Lee (1949), 227 Ind. 25, 83 N.E. 2c 778; Shaw

ve Shaw (1973), 159 Ind. App. 33, 304 N.E. 2d

536. Moreover, although the passage of a

substantial amount of time between the events

testified to and trial may well diminish the

weight of such evidence, it will not, in and

of itself, render that evidence inadmissible.

Id. In this case, the trial court acted well

within its discretion in admittina Mrs.

oi 3a

| Be — A 4, od — a

Eichman's testimony into evidence, thereby

enabling the jury to assess its weight.

The second objection presents a nicer

question. Indiana follows the rule that a

witness may not be impeached on collateral

matters. The justifications normally given

for the rule are that it saves judicial time

and, more importantly, is necessary to avoid

confusing the jury with an interminable

multiplication of the issues.

The determination of when a matter is

collateral is made on the basis of whether

the offering party would be entitled to prove

it as a part of his case apart from the

contradiction it supplies. Brown v. State

(1981), Ind., 417 N.E. 2d 333. While this

determination is sometimes phrased as whether

the party could introduce the evidence as

part of his case-in-chief, that terminology

is too narrow. The question is whether the

evidence is properly admissible for any

purpose independent of the contradiction of

@l4-

RT eT Te eT eR ene RT ate te ee er eee TRL ae ee

the prior witness. IIIA Wigmore. Evidence

(Chadbourn Revision) Section 1022.

Here, during his defense, Andrews

presented evidence of his general good moral

character. When he did so the law permitted

the state to offer evidence of his bad

character, and it could do so by producing

q evidence of specific bad acts. Jackson v.

State (1977), 267 Ind. 62, 366 N.E. 2d 1186,

cert. denied 98 S. Ct. 1623, 435 U.S. 9753,

56 L. Ed. 2d 69.

Thus, in Jackson the court held this to

be an independent ground for admissibility of

evidence that defendant had previously

threatened another foreman, even though the

evidence also served to impeach Jackson's

testimony.

Jackson controls here. Since the

- evidence was relevant to dispute Andrews's

claim of good moral character and was

admissible as a specific prior bad act, it

was not objectionable because it also

-15-

impeached Andrews's testimony denying that he

had made an advance to Mrs. Eichman. |

5) The court erred in denying a defense

motion for a mistrial offered on the ground

that the State introduced testimony by

another daughter concerning incestuous acts

by her father that were not charged in the

information filed against him. We disagree.

Although evidence of prior criminal

activity by a defendant other than the

specific activity charged is generally not

admissible on the question of guilt, such

evidence is now regularly admitted in case of

child molestation, incest, sodomy, etc. in

order to prove that the defendant possesses a

"depraved sexual instinct." "[(T]his court

has allowed evidence of prior convictions for

similar offenses to be admitted as tending to

show a depraved sexual instinct when sodomy

or incest is involved. Daniels v. State

(1980), Ind., 408 N.E. 2d 1244; Cobbs v.

State (1975), 264 Ind. 60, 338 N.E. 2d 632;

=16<

Austin v. State (1974), 262 Ind. 529, 319

N.E. 24 130." Montgomery v. State (1980),

412 N.E. 2d 793, 796. "Such similar crimes

often show intent, motive, purpose,

identification or a common scheme or plan."

Id.

"The rationale for the exception to

the usual exclusion of the evidence is

to bolster the credibility of the

prosecuting witness in a situation where

the accusations or the acts standing

alone seem improbable, or where the acts

are crimes in continuando in nature and

it is highly probable similar acts have

occurred before or will occur after.

State v. Robbins (1943), 221 Ind. 125,

N.E. - These elements are

particularly prevalent in cases

involving incest, sodomy or child

molesting. Thus, application of the

exception to permit admission of the

evidence only in prosecutions for these

crimes is understandable."

Lehiy ve. State (1986), Ind. App., 501 N.E. 2d

451, 455.

The testimony of this witness falls

squarely within the parameters of the

"depraved sexual instinct" exception. Her

statements indicating that her father

regularly touched her vagina demonstrated a

aki

common scheme of incestuous behavior on the

part of her father, especially since his

sexual interaction with the girl's older

sisters had commenced with vaginal touching.

It is immaterial that the sexual actions

about which she testified were not identical

to those that Andrews was charged with

engaging in. We have stated that "a similar

sex offense is all that is required, not a

duplicate performance. Similarly, it is

apparent that the similar illicit relations

need not be confined to the prosecuting

witness, but may include other witnesses."

Merry v. State (1975), Ind. App., 335 N.E. 2d

249, 262.

Under these circumstances, the trial

court acted correctly in admitting the

testimony of this witness and in denying the

defense's motion for mistrial.

6) The court erred in overruling

Andrews's objection to the State's questions

to defense witness Sandra Dewart concerning

~1@-

her knowledge of Andrews's propensity for

physically abusing his children and her

belief regarding the likelihood of such a

propensity. Andrews points out that the

State asked Dewart if she thought that

Andrews would physically abuse his children

and if she had ever witnessed him abusing

them. She answered that she didn't know if

Andrews would physically abuse his children

and that she had never witnessed him abusing

them. The State then asked Dewart a second

time whether she thought Andrews would abuse

his children, whereupon defense counsel

objected that the question had already been

asked and answered. The court agreed but

nonetheless permitted the question to be

asked a second time.

Andrews has waived his right to raise

this issue on appeal because, at trial, he

objected to the question concerning his

potential for physically abusive behavior by

arguing that it had been asked and answered

a=i9—

whereas, on appeal, he argues instead that

the question was irrevelant and inadmissible

because it tended to show that Andrews

committed another offense separate and

distinct from the offenses for which he was

on trial. Henderson v. State (1980), 273

Ind. 334, 403 N.E. 2d 1088; Grimes v. State

(1972), 258 Ind. 257, 280 N.E. 2d 575.

"Grounds for objection to the admissibility

of evidence relied upon on appeal must be the

same as those urged in the trial court.

Jones v. State (1973), 260 Ind. 463, 296 N.E.

2d 407; Rector v. State (1971), 256 Ind. 634,

271 N.E. 2d 4523 Tyler v. State (1968), 250

Ind. 419, 236 N.E. 2d 815." Beasley v. State

(1977), Ind., 370 N.E. 2d 360, 364.

Even assuming, arguendo, that Andrews

had not waived his right to raise this issue,

the State would prevail because Andrews made

no showing that Dewart's testimony was

prejudicial to him. Dewart, after all,

clearly pointed out that she did not know if

~200

Andrews was the type of person who would be

likely to physically abuse his children.

7) There was insufficient evidence on

the basis of which a jury could have found

Andrews guilty of the charges against him.

Andrews argues that the testimony of the two

victims failed to specify dates, times and

places of incestuous behavior on his part and

that their allegations do not comport with

the large size of his household, the

considerable amount of overtime work he

performed and his active involvement in

bowling and in coaching scftball. We reject

these arguments.

When sufficiency of the evidence

supporting a criminal conviction is

challenged on appeal, we apply a narrow

standard of review. We neither reweigh

the evidence nor judge the credibility

of the witnesses. Rather, we look at

the evidence most favorable to the State

together with all reasonable inferences

to be drawn therefrom. If there is

substantial evidence of probative value

from which the jury could have

reasonably inferred guilt beyond a

reasonable doubt, the conviction will be

affirmed. Arthur v. State (1986), Ind.

499 N.E. 2d 746; McMurr - State

(1984), Ind., 467 N. oa 1202.

pe ee

roe eee eT ek PA eee:

maynare ve State (1987), Ind., 513 N.E. 2d

td

In this case, there was substantial

evidence from which a reasonable inference of

guilt beyond a reasonable doubt could be

drawn.

The wictim[s] gave testimony as to

the sexual acts which occurred during

these encounters. [They] indicated the

places where these acts occurred.

Although [they] did not give exact dates

of all occurrences, [they] gave

testimony indicating approximate time

frames by reference to other

activities."

Phillips v. State (1986), Ind. App., 499 N.E.

’ 6.

Contrary to Andrews's contention, the

testimony of the victims was not

uncorroborated; indeed, the testimony of each

daughter corroborated the testimony of the

other because each testified that she assumed

the other was being molested, as their father

would make the same excuses in order to be

alone with each. Morecver, their brother,

James, corroborated their testimony when he

testified that he had seen each of them

«2%

—_—

apparently sweating or crying while leaving

their father's bedroom.

Just as the testimony is not

uncorroborated, neither is it inherently

improbable, as Andrews asserts. We do not

find it incredible that Andrews found time in

his day for overtime work, recreation,

community involvement, a normal sex life with

his wife and incestuous activities with his

daughters. "When faced with a claim of

inherently improbably or incredibily dubious

testimony, the court on review will only

reverse when no reasonable person could

believe it. Shippen v. State (1985), Ind.,

477 N.E. 2d 903. Such discrepancies go to

the weight of the evidence and the

credibility of the witness and, as a result,

are beyond our review." Walters v. State

(1986), Ind., 495 N.E. 2d 734, 736-37. As

the testimony of the victims was neither

"inherently improbable" nor “incredibly

dubious," we find that that testimony

=23—

PEO eC re PE Re Roe Las eee terns

presented sufficient evidence from which a

jury could reasonably infer guilt beyond a

reasonable doubt.

8) The court erred in denying Andrews's

motion to dismiss the State's amended

information for lack of specificity. Andrews

argues that because the court did not require

the State to plead a particular date or dates

in counts I through VIII of the information,

he was unable to raise an alibi defense. We

disagree.

The trial court acted correctly in

denying Andrews's motion because the

information that the State filed against

Andrews was sufficiently specific to

adequately inform him of the charges against

him, thereby enabling him to raise an alibi

defense.

In Thurston v. State (1985), Ind., 472

N.E. 2d 198, another child molestation case

in which the defendant claimed that the

vagueness of the State's charges prevented

=24-

him from establishing an alibi defense, but

in which the trial court found that the

defendant had engaged in frequent sexual

activity with the victim the Indiana Supreme

ae

Court stated:

It would not be practicable in a

case like this to confine the State to a

more specific time in its proof. We do

net see how the prosecution could have

done a better job of pinpointing the

time of the offense or how the defendant

was rendered unable to prepare a defense

to the charge.

Id. at 201. In other cases of this type, we

have found legally sufficient an information

charging incestuous intercourse from "on or

about the fifth day of December, 1970 to on

or about the fifth day of September, 1973."

Merry v. State (1975), Ind. App., 335 N.E. 2d

249, 256, and another charging “child

molesting occurring between February 16 and

March 1, 1985." Phillips v. State (1986),

Ind. App., 499 N.E. 2d 803, 804.

Similarly, we conclude in this case that

the State's amended information, which

charged in counts I - VIII that Andrews had

=2S=

intercourse and oral sex with one victim

"between August 1, 1980 and September 29,

1980" and “between September 30, 1980 and

November 30, 1980," was legally sufficient to

inform Andrews of the charges against him and

to enable him to raise an alibi defense.

Besides comporting with established

precedent, the State's information satisifes

the requirements of I.C. 35-34-1-2(a)(5) and

35-34-1-2(a)(6). The former states that an

information “shall be in writing and allege

the commission of an offense by stating the

date of the offense with sufficient

particularity to show that the offense was

committed within the period of limitations

applicable to that offense.” The latter

repeats the writing requirement and also

states that the information must “allege the

commission of an offense by stating the time

of the offense as definitely as can be done

if time is of the essence of the offense."

In this instance, the challenged information

~26-

ee — i ae eS 2 . a r

stated the relevant dates with sufficient

particularity to show that the offenses :

charged were committed within the applicable

limitations period and that they commenced

prior to the girl's twelfth birthday.

9) The prosecutor made two erroneous

statements during his closing argument that

constituted fundamental error, necessitating

reversal. Andrews points out that the

prosecutor said that Kara, Andrews's daughter

from his second marriage, was, in fact, not

his child and that all of Andrews's children

from his first marriage had been returned to

the custody of their mother prior to Memorial

Day weekend, 1985.

Andrews has waived his right to raise

this issue on appeal. "No mention was made

at trial on the grounds appellant asserts

before us on appeal. Therefore, the issue

has been waived." Bell v. State (1977), 267

Ind. l, 6, 366 N.E. 2d 1156, 11359. Failure

to raise a proper objection at trial will

a Fo

constitute waiver of error, unless it can be

-shewn that waiver would deny fundamental due

process. Randolph v. State (1978), Ind., 378

N.E. 2d 828; Bobbitt v. State (1977), 266

Ind. 164, 361 N.E. 2d 1193. "Fundamental

error is a clearly blatant violation of basic

and elementary principles. The harm or its

potential must be substantial and appear

clearly and prospectively from the record.

Reynolds v. State (1984), Ind., 460 N.E. 2d

506." Gosnell v. State (1985), Ind., 483

N.E. 2d 445, 447. Because the prosecutor's

misstatements did not cause Andrews

substantial harm or even threaten to do so,

there was no fundamental error here, hence

the issue is waived for failure to raise a

proper objection at trial.

10) The court erred in refusing to give

the defense's tendered instructions 3, 5, and

7 and in giving its own instruction 15 and

the State's tendered instructions 6 and 8.

We disagree.

=~28-

Defense instruction 3 stated that if a

conclusion of guilt as well as a conclusion

of innocence could be drawn from the

evidence, the jurors should reach the latter

conclusion. Instruction 5 stated that jurors

should use their common sense in determining

whom to believe and that they should not

permit the number of witnesses called to

testify on a particular issue to influence

their conclusion regarding the truthfulness

of testimony. Instruction 7 stated that

reasonable doubt might arise in the minds of

jurors and that if it does, they should find

the defendant not guilty.

This court has stated:

In reviewing a tendered instruction

which has been refused, it is necessary

to determine whether the instruction

correctly states the law, whether there

is sufficient evidence in the record to

support the giving of the instruction,

and whether the substance of the

disputed instruction is covered by other

instructions which were given. Beck vy.

State (1981), Ind. App., 414 N.E. 2d

970.

Shanhoff v. State (1983), Ind. App., 448 N.E.

=39—

2d 308, 318. In this case, the only issue is

whether the content of the tendered

instructions was covered by instructions that

the court actually gave to the jury. We

conclude that it was so covered. Both

tendered instruction 3 and final instruction

13 apprise jurors of the reasonable doubt

standard in criminal law. Both tendered

instruction 5 and final instructions 14 and

15 inform jurors that they are the judges of

witness credibility and that they should use

their common sense in making such judgments.

These particular instructions are also

comparable in that they tell jurors to take a

witness's motives, possible bias, and conduct

while testifying into account when judging

the truthfulness of that witness's testimony.

Both tendered instruction 7 and final

instruction 12 inform jurors about the

presumption of innocence and the reasonable

doubt standard. Because the substance of the

tendered defense instructions that the court

~30—

refused was addressed in the court's final

instructions, the court did not commit error

in refusing the three tendered instructions

or in giving final instruction 15.

We also reject Andrews's challenge to

the State's tendered instructions 6 and 8,

which the court gave as final instructions 19

and 20, respectively. Andrews argues that

final instruction 19 improperly characterizes

all child vicitims as having greater

difficulty than adults in remembering dates

and incidents, thereby permitting the jury to

evaluate the testimony of children according

to different standards. That instruction

informed the jurors that they should weigh a

child victim's inability to recall the

precise dates and times of sexual offenses

along with the other available evidence, but

that the child's failure to recall dates and

times does not make the child's testimony

inadmissible or unusable. Andrews also

argues that there was no evidence to support

-3l<-

the giving of final instruction 20, which

states that a crime begun in one county, but

completed in another can be prosecuted in

either.

The Indiana Supreme Court has stated:

The giving of jury instructions lies

largely within the trial court's

discretion and any error in a particular

instruction will not warrant a reversal

unless the error is of such a nature

that the entire charge of which it is

part misled the jury on the law of the

case. Daniels v. State (1980), Ind.,

408 N.E. 2d 1244; Coonan v. State

(1978), 269 Ind. 578, 382 N.E. 2d 157,

cert. denied (1979), 440 U.S. 984, 99 S.

Ct. 1798, 60 L Ed. 2d 246. Moreover,

any error in the giving or refusing of

an instruction is harmless when a

conviction is clearly sustained by the

evidence and the jury could not properly

have found otherwise. Battle v. State

(1981), Ind., 415 N.E. 2d 39.

Grossenbacher v. State (1984), Ind., 468 N.E.

7 *

Final instructions 19 and 20 satisfy this

standard. Neither instruction contains error

sufficient to produce a misleading charge to

the jury. Any error that either or both

might contain is harmless for, as we stated

earlier, a conviction is clearly sustained by

=>

the evidence in this case and the jury could

not properly have concluded otherwise.

Other grounds also support our

conclusion. Final instruction 19 comports

with our decision in Puckett v. State (1982),

Ind. App., 443 N.E. 2d 77, 78, where we

stated that "a witness's inability to testify

as to the precise dates and times of prior

sexual occurrences goes to the weight rather

than the admissibility of such testimony in

sex cases." Moreover, this instruction does

not, as Andrews argues, violate the rule of

Beasley v. State (1977), 267 Ind. 396, 370

N.E. 2d 360 that the trial court should not

Single out the testimony of any witness for

attack regarding its credibility. This rule

does not state, as Andrews asserts it does,

that the court may not mention a particular

witness or group of witnesses in an

instruction. Rather, it states that the

court, in giving an instruction, may not

attack the credibility of a particular

~33=

witness's testimony or opinion as to the

weight that should be given to that

testimony. Beasley, supra, at 363. Final

instruction 20 comports with the conclusion

that the Indiana Supreme court has reached in

several cases and that we reached earlier in

this opinion, namely, that when the various

acts that comprise a crime occur in different

counties but are part of a single chain of

events, the charge may be brought either in

the county where the crime commenced or in

the county where it ended. See pp. 4-5,

supra. There was sufficient evidence,

therefore, to support the giving of this

instruction.

11) The court erred in imposing

consecutive sentences on counts I, V and X.

Andrews argues that the court erred by

failing to take into account two mitigating

circumstances, namely, that Andrews was

likely to respond positively to probation or

short-term imprisonment, and that long-term

ote

imprisonment was likely to result in undue

hardship to Andrews and his dependents,

including the victims. We disagree.

A trial court has judicial

discretion to aggravate or mitigate a

sentence from the statutory

prescription. Spinks v. State (1982),

Ind., 437 N.E. LEP However, in

imposing an increased or consecutive

sentence, the record must show a

consideration by the judge of the facts

of the specific crime; and the relation

of the sentence. Smith v. State (1986),

Ind., 491 N.E. 2d 193. The court may

use the same factor to aggravate a

sentence and to order consecutive —

sentences. Hedrick v. State (1982),

Ind., 430 N.E. 2d 1150.

-

Simmons v. State (1987), Ind., 504 N.E. 2d

| e

In this case, the trial court satisfied

the Simmons standard by stating its reasons

for imposing consecutive sentences and by

weighing an aggravating factor against a

mitigating factor. The court stated that it

imposed consecutive sentences because: a) two

daughters were involved; b) eleven charges

against Andrews represented separate acts; c)

the acts at issue continued through several

stages of the victims’ lives; and d)

~38-

concurrent sentences would depreciate the

seriousness of these offenses, a

consideration that outweighed the fact that

Andrews lacked a criminal history.

~ Thus, the imposition of consecutive

sentences on counts I, V and X was eminently

reasonable and those sentences will stand.

The Indiana Supreme Court has said:

We will not revise a sentence

authorized by statute unless such

sentence is manifestly unreasonable in

light of the nature of the offense and

the character of the offender. A

‘sentence is not manifestly unreasonable

unless no reasonable person could find

such sentence appropriate to the

particular offense and offender for

which such sentence was imposed. Freed

ve State, (1985), Ind., 480 N.E. 2d 929.

Simmons v. State, supra, at 582.

We conclude that the trial court

committed no reversible error and we

therefore affirm James Andrews's convictions

‘

on all counts.

Affirmed.

STATON, J. and NEAL, J. Concur.

=36-

APPENDIX B

ORDER OF THE SUPREME COURT OF THE |

STATE OF INDIANA

STATE OF INDIANA

CLERK OF THE SUPREME COURT

Daniel Rock Heiser, Clerk

217 State House

Indianapolis, IN 46204

Cause No. 57A03-8801-CR-1

re LOWER CAUSE

CR-85-4

JAMES MURVEL ANDREWS V. STATE OF INDIANA

You are hereby notified that the Supreme

Court has on this day June 27, 1989 issued

the following order:

Appellant's Petition to Transfer and

Petition to Argue Grounds Not Included

in Petition for Rehearing is hereby

denied, without opinion. Randall T.

Shephard, Chief Justice, All Justices

Concur.

WITNESS my name and the seal of this

Court this 27th day of June, 1989.

s/Daniel Heiser

Clerk, Court of Appeals