Attorneys for Appellee
Attorney General of Indiana
Deputy Attorney General
STATE OF INDIANA,
Appellee (Plaintiff below).
) Supreme Court No.
January 23, 2002
Defendant Raymond Love was convicted of child molestation for having sex with his
daughter. We affirm, finding the evidence sufficient and the information not at
variance with the evidence presented. We also find testimony that the county
jail does not monitor medic
ation use by inmates (such that Love could have
obtained medicine from another and cured himself of a venereal disease) relevant to
his having tested negative for the disease.
The State presented evidence at trial that the molestation began sometime close to
winter while the victim lived at 33
rd and Meridian. The victim had
lived at 33rd and Meridian Street from April, 1997, to August, 1998.
She stated that the acts continued when she moved to New York Street
in August, 1998. At that time, she would see Defendant almost every
day. In December, 1998, the victim moved in with Defendant and his
wife. The victim testified that Defendant continued the pattern of having sex
with her when his wife was not home. This continued until April,
Indiana Code § 35-34-1-2(a)(5) requires that an information [state] 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 State must also
[state] the time of the offense as definitely as can be done if
time is of the essence of the offense.
Id. § 35-34-1-2(a)(6) Where
time is not of the essence of the offense, however, it is well
established that the State is not confined to proving the commission on the
date alleged in the affidavit or indictment, but may prove the commission at
any time within the statutory period of limitations. See Herman v. State,
247 Ind. 7, 17, 210 N.E.2d 249, 255 (1965) ([W]here time is not
of the essence of the offense, under an allegation of a specific date,
the offense may ordinarily be proved as having occurred at any date preceding
the filing of the affidavit or indictment which is within the statute of
limitations.); Quillen v. State, 271 Ind. 251, 252, 391 N.E.2d 817, 818 (1979)
(citing Stallings v. State, 232 Ind. 646, 114 N.E.2d 771 (1953)).
Time is not of the essence in this case.
See Barger v.
State, 587 N.E.2d 1304, 1307 (Ind. 1992) (holding that in most circumstances, time
is not of the essence in the crime of child molesting) (citing Hodges
v. State, 524 N.E.2d 774 (Ind. 1988)). In child molestation cases, the
exact date is only important in limited circumstances, such as where the victim's
age at the time of the offense falls at or near the dividing
line between classes of felonies. Id.
It appears from the information that the State made a typographical error. The info rmation indicates three separate acts and lists the time period it alleges that each act occurred. The information alleges that Count I occurred between January 12, 1998, and February 14, 1998. Count II is alleged to have occurred between August 1, 1998, and November 30, 1998. Count III indicates a time period between March 1, 1998, and March 31, 1998. The State suggests, and it appears from the sequence of the dates for each count, that the State intended to allege that Count III occurred between March 1, 1999, and March 31, 1999.
Because time was not of the essence in the crimes alleged, the States
typographical error did not prejudice Defendant. As Defendant states in his brief,
the evidence showed, (1) there were a series of [molestations] that began during
time [the victim and her mother] lived at 33rd and Meridian; (2) they
began living there in April, 1997; and (3) the incidents ended in 1999.
See Appellants Br. at 14. It is clear from the information
that Defendant was being charged with three acts of molestation. Furthermore, the
information would be sufficient even if it were restricted to the time periods
it listed; the State presented evidence of multiple acts of molestation that occurred
between August, 1998, and April, 1999. Therefore, there was evidence of molestation
during each time period indicated in the charging information.
In reviewing a sufficiency of the evidence claim, the Court neither reweighs the
evidence nor assesses the credibility of the witnesses. See Brasher v.
State, 746 N.E.2d 71, 72 (Ind. 2001); Chambliss v. State, 746 N.E.2d 73,
77 (Ind. 2001). We look to the evidence most favorable to
the verdict and reasonable inferences drawn therefrom. See Brasher, 746 N.E.2d at
72; Chambliss, 746 N.E.2d at 77. We will affirm the conviction if
there is probative evidence from which a reasonable jury could have found the
defendant guilty beyond a reasonable doubt. See Brasher, 746 N.E.2d at 72;
Chambliss, 746 N.E.2d at 77.
Within the narrow limits of the incredible dubiosity rule, a court may impinge
upon a jurys function to judge the credibility of a witness.
v. State, 706 N.E.2d 1078, 1079 (Ind. 1999). If a sole witness
presents inherently improbable testimony and there is a complete lack of circumstantial evidence,
a defendant's conviction may be reversed. Id. This is appropriate only
where the court has confronted inherently improbable testimony or coerced, equivocal, wholly uncorroborated
testimony of incredible dubiosity. Id. Application of this rule is rare
and the standard to be applied is whether the testimony is so incredibly
dubious or inherently improbable that no reasonable person could believe it. Stephenson
v. State, 742 N.E.2d 463, 498 (Ind. 2001) (quoting Bradford v. State,
675 N.E.2d 296, 300 (Ind. 1996)).
We find that the evidence was sufficient for a jury to convict Defendant
and that the incredible dubiosity rule does not apply. Defendant has not
shown the victims testimony to be coerced, and there was nothing inherently improbable
or contradictory about her testimony.
Defendant suggests that the victims mother coerced
her into testifying,
but Defendant cross-examined the victim, questioning her credibility and whether
her testimony had been coerced. It was within the jurys province to
evaluate the witnesss credibility, and the jury chose to believe the victim.
Defendant pointed to his trichomonas test results as evidence that he did not
have sex with the victim. The State countered with testimony that Defendant
could have been treated for and cured of trichomonas while he was in
jail. Sergeant Neilander, the supervisor of the county jail medical department, testified
that the jail administers a drug, Flagel, to inmates to treat trichomonas.
He further testified that there was no record that Defendant had requested or
had taken any medication for trichomonas. However, Neilander only testified that inmates
can receive Flagel and are responsible for taking it themselves. The States
argument, therefore, was that because inmates were responsible for administering their own medication,
another inmate could have given Flagel to Defendant. This would have made
it possible that the victim had contracted trichomonas from Defendant even though he
later tested negative for it.
In a pretrial motion in limine and again at trial, Defendant moved to
exclude Sergeant Neilanders testimony regarding Defendants ability to get medication for trichomonas from
other inmates while he was in jail. Defendant argued that it was
pure speculation that Defendant had cured himself of trichomonas and improper to allow
the jury to speculate that he had.
Indiana Evidence Rule 403 states that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.... If a witness is not testifying as an expert, the witnesss testimony in the form of opinions or inferences is limited to those opinions or inferences which are ... rationally based on the perception of the witness. Evid. R. 701. An inference cannot be based upon evidence which is uncertain or speculative or which raises merely a conjecture or possibility. See Vasquez v. State, 741 N.E.2d 1214, 1216 (Ind. 2001) (citing Shutt v. State, 233 Ind. 169, 174, 117 N.E.2d 892, 894 (1954)).
Neilander testified that inmates in the Marion County jail are given a
two-week supply of medicine at a time and allowed to take it without
any monitoring. While he did testify that inmates without medicine have access
to other inmates medicine if the other inmates allow it, he did not
speculate as to whether Defendant obtained medication in jail.
Defendant argues that the jury was permitted to speculate improperly that Defendant received medication from another inmate while in jail. Under the circumstances, however, Sergeant Neilanders testimony was proper. Defendant contended that the victim had been molested by her step-father in the past and could have gotten trichomonas from him. Defendant further claimed that because he did not have trichomonas, he could not have given it to his victim.
Evidence that Defendant tested negative for trichomonas would create an inference that Defendant
had not had sex with the victim. It was therefore permissible for
the trial court to allow the State to introduce evidence that it was
possible that Defendant could have avoided having been diagnosed with trichomonas by getting
medication from another inmate.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
KURT A. YOUNG STEVE CARTER
Nashville, Indiana Attorney General of Indiana
Deputy Attorney General