ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
GEOFFREY A. RIVERS KAREN M. FREEMAN-WILSON
Muncie, Indiana Attorney General of Indiana
Deputy Attorney General
COURT OF APPEALS OF INDIANA
JAMES W. BUCHANAN, )
vs. ) No. 18A04-0004-CR-167
STATE OF INDIANA, )
APPEAL FROM THE DELAWARE SUPERIOR COURT
The Honorable Robert L. Barnet, Judge
Cause No. 18D01-9908-CF-69
February 19, 2001
OPINION - FOR PUBLICATION
James Buchanan appeals his conviction after a jury trial of child molesting, a
Class A felony. Buchanan alleges five errors, which we restate as:
1) that the trial court abused its discretion when it allowed into
evidence certain pornographic photographs, drawings, and magazines found in Buchanans possession; 2)
that six-year-old H.B., the victim, was incompetent to testify; 3) that another
witness improperly vouched for the victims testimony; 4) that Buchanans confession was
obtained illegally; and 5) that the evidence was insufficient to sustain his
We find the trial court erred in admitting certain evidence, and so reverse
and remand for a new trial.
FACTSSee footnote AND PROCEDURAL HISTORY
Fifty-eight-year-old Buchanan was babysitting H.B., then five years old, on July 24, 1999.
After Buchanan and H.B. went swimming in their clothes on Buchanans riverfront
property, Buchanan told H.B. to take off her clothes. After H.B. complied,
Buchanan told her to lie on the ground. Buchanan then photographed her
and performed oral sex on her. H.B. was returned to her parents
without her original clothing and covered with insect bites. Within a few
days, H.B. spontaneously informed her mother of the incident. Medical and law
enforcement authorities were notified, and Buchanan was arrested and ultimately convicted.
DISCUSSION AND DECISION
1. Improper Admission of Character Evidence
During the execution of a search warrant at Buchanans home, police found a
large quantity of pornographic material depicting children, which material included videotapes, drawings, postcards,
and magazines. Some of these were admitted into evidence at Buchanans trial
over his objection. Buchanan claims that the admission of this evidence was
error because its potential prejudicial effect on the jury outweighed any probative value
and because the State improperly used the evidence to prove Buchanans character.
We agree with Buchanan and so must reverse and remand for a new
Indiana Evidence Rule 404(B) provides that [e]vidence of other crimes, wrongs, or acts
is not admissible to prove the character of a person in order to
show action in conformity therewith. Such evidence may be admissible for other
purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake. Id. That is, such evidence may be admissible
despite its tendency to show bad character or criminal propensity, if it makes
the existence of an element of the crime charged more probable than it
would be without such evidence. Lannan v. State, 600 N.E. 2d 1334,
1339 (Ind. 1992), quoting Bedgood v. State, 477 N.E.2d 869, 872-73 (Ind. 1985).
Even if such evidence is relevant, however, it may be excluded if
its probative value is substantially outweighed by the danger of unfair prejudice.
Evid. R. 403.
In deciding whether evidence is admissible under Rule 404(B), the trial court must
determine that the evidence of other crimes, wrongs, or acts is relevant to
a matter at issue other than the defendants propensity to commit the charged
act, and must then balance the probative value of the evidence against the
danger of unfair prejudice pursuant to Evid. R. 403.
Roop v. State,
730 N.E.2d 1267, 1270 (Ind. 2000). The State argues the admission of
the evidence secured at Buchanans home with a valid search warrant was properly
admissible to show Buchanans plan and motive to molest H.B. It was
A. Evidence of Plan or Motive
Buchanan argues that evidence in the form of photographs of semi-nude children, drawings
of nude children and the cover of a magazine entitled Little Girls, which
appears to depict an adult male engaging in intercourse with a child, was
irrelevant and highly prejudicial. He argues that this evidence was not even
illegal in substance, (Br. of Appellant at 11), and contends the admitted evidence
tends only to prove he behaved in conformity with his bad character.
The State contends these materials were properly admitted as evidence of Buchanans plan
and motive to molest H.B.
In order to fit within the plan exclusion, the test
is not whether the other offenses have certain elements in common with the
charged crime, but whether the other offenses tend to establish a preconceived plan
by which the charged crime was committed. The crimes must, therefore, be
so related in character, time, and place of commission as to establish some
plan which embraced both the prior and subsequent criminal activity and the charged
Lannan, 600 N.E.2d at 1339 (discussing evidence of prior crimes).
The drawings and photographs the State offered and the trial court admitted into
evidence depicted naked and semi-clothed little girls. None of the drawings or
photographs showed physical contact between an adult male and a female child.
Buchanan was accused of licking H.B.s genital area and was charged with child
molestation. As distasteful as we find these drawings and photographs, they do
not show that Buchanan had a common plan to sexually molest little girls.
Because the drawings and photographs were not relevant to the existence of
a plan on Buchanans part, their admission into evidence was error.
Similarly, the drawings and photographs were not relevant evidence of Buchanans motive.
The relevance of character evidence to show motive is tied to the facts
of the specific crime.
Hicks v. State, 690 N.E.2d 215, 224 n.12
(Ind. 1997). For example, a defendants prior bad acts may be admissible
to show the relationship between the defendant and the victim. Id. at
222. See also Elliott v. State, 630 N.E.2d 202, 204 (Ind. 1994)
(prior threats of violence to ex-wife and victim admissible to show the relationship
between the parties and defendants motive); Price v. State, 619 N.E.2d 582, 584
(Ind. 1993) (prior bad acts against the victim are admissible to show the
relationship between the parties and appellants motive). Here, the drawings and photographs
of naked little girls are not tied to Buchanans relationship with the victim
or to any other facts of Buchanans crime. As a result, they
should not have been admitted to prove Buchanans motive.
B. Unfair Prejudice
Even if these photographs and drawings evidence a common plan or motive, they
do not pass the second part of the test the balancing of
the probative value of the evidence with its prejudicial effect that is required
under Evid. R. 404(B). We find extremely prejudicial the sheer volume of
the drawings and photographs of this nature; in Exhibit #6, there were 77
particularly offensive drawings and photographs. As a result, we cannot say that
the minimal probative value, if any, of these drawings and photographs outweighed their
Competency of H.B. CONCLUSION
Because we remand, we address certain other of the issues Buchanan raises, in
order to avoid questions on retrial.
Buchanan alleges the trial court erred in allowing the then six-year-old H.B. to
testify, as her testimony was contradictory as to whether she knew the difference
between the truth and a lie. The competency of a challenged witness
is to be decided by the trial court as a matter of law.
Kimble v. State, 262 Ind. 522, 525, 319 N.E.2d 140, 143 (1974).
When the trial court has found a witness to be competent, the
reviewing court will interfere only if there is a manifest abuse of discretion.
Morris v. State, 172 Ind. App. 509, 513, 360 N.E.2d 1027, 1029
In Newsome v. State, 686 N.E.2d 868 (Ind. Ct. App. 1997), a challenge
to a seven-year-old child molestation victims testimony, we reviewed this courts established test
to determine witness competency in light of Evid. R. 601. That Rule
provides: Every person is competent to be a witness except as otherwise
provided in these rules or by act of the Indiana General Assembly.
In Newsome, we noted that before a child will be deemed competent, it
must be established that the child (1) understands the difference between telling a
lie and telling the truth, (2) knows she is under a compulsion to
tell the truth, and (3) knows what a true statement actually is.
686 N.E.2d at 873.
A hearing was held to evaluate H.B.s competency to testify at trial.
According to the record, H.B. was able to distinguish between telling the truth
and telling a lie because she had experienced punishment for lying and had
experienced no repercussions for reciting the truth. She identified examples of true
statements and lies, and accurately distinguished examples of what was a lie and
what was the truth. She also acknowledged the importance of telling the
truth in the courtroom by identifying her testimony as a promise to tell
the truth and comparing the importance of her answers to questions in court
with telling the truth to a teacher in a school setting. H.B.s
statements at the hearing indicate she was competent to testify and the trial
court did not abuse its discretion in allowing her testimony.
3. Improper Vouching
Buchanan also argues H.B.s regular therapist, who testified as to H.B.s capacity and
ability to observe and recall events accurately and to distinguish fact from fantasy,
improperly vouched for her testimony. We disagree. Generally, neither an expert
nor a lay witness may testify that another witness is telling the truth.
The admission of such testimony invades the province of the jury.
Jones v. State, 581 N.E.2d 1256, 1258 (Ind. Ct. App. 1991). There,
we determined that a therapists testimony that I believe the child was molested
Here, by contrast, at no point did H.B.s therapist vouch for the substance
of H.B.s testimony or testify whether, in his opinion, she was molested.
Rather, the therapist testified only to the effect that he believed H.B could
accurately process information and could distinguish between fact and fantasy. H.B.s therapist
did not improperly vouch for her testimony.
4. Voluntary Confession
After Buchanan was in custody but before his arraignment, Special Agent Neal Freeman
of the FBI interviewed Buchanan after written and verbal Miranda warnings were executed.
Agent Freeman testified that Buchanan spoke freely with him and another agent
about a videotape found during the search of Buchanans residence. The tape
depicted an adult male (not Buchanan) having sexual intercourse with a child.
Upon winding up the interview, one of the agents told Buchanan the agents
would be contacting H.B.s family and asked if Buchanan had any message for
them. At this point, Buchanan lowered his head, began to cry, offered
an apology, and confessed that he had licked H.B.s genitals. The FBI
agent reduced the statement to writing, but Buchanan refused to sign it.
Buchanan now complains that this confession to the charged crime in the presence
of FBI agents was involuntary and should have been suppressed because he refused
to sign the statement. The decision whether to admit a defendants custodial
statement is within the discretion of the trial court. Horan v. State,
682 N.E.2d 502, 509 (Ind. 1997); Jones v. State, 655 N.E.2d 49, 56
(Ind. 1995). In making a determination whether a statement is voluntary, the
trial court must consider the totality of the circumstances. Fields v. State,
679 N.E.2d 1315, 1320 (Ind. 1997). The court attempts to insure that
a confession was not obtained through inducement, violence, threats or other improper influences
so as to overcome the free will of the accused. Id. (quoting
Collins v. State, 509 N.E.2d 827, 830 (Ind. 1987)). When reviewing a
challenge to the trial courts decision, we do not reweigh the evidence but
instead examine the record for substantial, probative evidence of voluntariness. Jones, 655
N.E.2d at 56.
Buchanan claims his confession was false and was an attempt to distract the
federal agents from his long-time friend who was shown molesting a child in
the videotape. At the pre-trial suppression hearing to evaluate the circumstances of
his confession, Buchanan characterized his statement as given freely and voluntarily. (R.
at 282.) The trial court found Buchanans will had not been overcome
by the agents; his Miranda waiver was voluntarily given; and under the totality
of the circumstances the statement itself was voluntarily given. (R. at 289.)
Because the record reveals no inducement, violence, threats or other improper influences
so as to overcome Buchanans free will, we find Buchanans confession was properly
admitted by the trial court.
5. Insufficient Evidence
Buchanan contends the evidence presented at trial was insufficient to support his conviction.
He notes there were only two eyewitnesses to the crime and asserts
he was tricked into confessing to the crime charged, which confession he repudiated.
Our standard for reviewing a claim of insufficiency of the evidence is well
settled. We do not reweigh the evidence or judge the credibility of
witnesses. Spurlock v. State, 675 N.E.2d 312, 314 (Ind. 1996). We
look to the evidence and the reasonable inferences therefrom that support the verdict,
and we will affirm a conviction if evidence of probative value exists from
which a jury could find the defendant guilty beyond a reasonable doubt.
At trial, H.B. testified that Buchanan touched her with his tongue where I
pee. (R. at 345.) She recounted the course of events that
led them to the river, the circumstances of her disrobing, and Buchanans videotape
of her. The uncorroborated testimony of one witness is sufficient to sustain
a conviction on appeal. Toney v. State, 715 N.E.2d 367, 368 (Ind.
1999). H.B.s testimony and Buchanans confession provided sufficient evidence to support the
conviction. Since we find that there was sufficient evidence to support Buchanans
conviction, double jeopardy is not implicated, and Buchanan may be retried.
We find that H.B was competent to testify, her therapist did not improperly
vouch for her testimony, Buchanans confession was voluntary, and there was ample evidence
to support Buchanans conviction. However, the prejudicial effect of much of the
evidence offered by the State and admitted at trial so far outweighed its
probative value that we must reverse. We so order, and remand to
the trial court for further proceedings consistent with this opinion.
ROBB, J., and MATHIAS, J., concur.
Because we reverse and remand for a new trial, we do not
address Buchanans contention that he was improperly sentenced.
Footnote: We remind Buchanans counsel that
a Statement of Facts in an appellate
brief should be a concise narrative of the facts stated in a light
most favorable to the judgment, and should not be argumentative. Nehi Beverage
Co., Inc. v. Petri, 537 N.E.2d 78, 82 (Ind. Ct. App. 1989).
The Statement of Facts Buchanans counsel offers us is, by contrast, a transparent
attempt to discredit the judgment, and it is clearly not intended to be
a vehicle for informing this court.
Lannan our supreme court abandoned the depraved sexual instinct exception to
the admission of prior act evidence. That exception had allowed the admission
of such evidence to show action in conformity with a particular character trait.
The cover of the magazine entitled Little Girls suggests, but does not
show, an adult male engaging in intercourse with a child. Although we
find the magazine extremely disturbing, its depiction of sexual activity between an adult
and a child does not provide the relevant evidence of a plan on
Buchanans part that is required under our supreme courts explanation in
Buchanan asserts, without explanation or citation to authority, that a videotape of
his statement to the police was improperly admitted. In the videotape Buchanan
describes himself as a pedophile and draws a distinction between being a pedophile
and a child molester. He states he understood the word pedophile to
mean one who likes stories, pictures, drawings, postcards, and tapes of children. (Br.
of Appellant at 11.) Because Buchanan offers no cogent argument why this
statement should not have been admitted, we are unable to address this allegation
Although we are unable to address on appeal the admissibility of Buchanans statement
that he was a pedophile, we question the admissibility of the videotape.
Much of the videotape reflects questions by the police directed to the proposition
that because Buchanan had photographs and drawings of naked little girls, it was
difficult for the police to believe he hadnt molested H.B. The repetition
of like questions and comments by the police underscores the likelihood that the
jury might rely on some of the evidence in the videotape to find
that Buchanan had molested H.B. simply because he had these materials in his