ATTORNEY FOR APPELLANT
Terry R. Curry
ATTORNEYS FOR APPELLEE
Karen M. Freeman-Wilson
Attorney General of Indiana
Priscilla J. Fossum
Deputy Attorney General
SUPREME COURT OF INDIANA
STEVE L. YOUNG, )
Appellant (Defendant Below), )
v. ) Indiana Supreme Court
) Cause No. 49S00-0001-CR-32
STATE OF INDIANA, )
Appellee (Plaintiff Below). )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Jane Magnus-Stinson, Judge
Cause No. 49G06-9709-CF-130751
ON DIRECT APPEAL
May 4, 2001
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 States 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 Rileys father lived together with Rileys seven children, three
of whom were Youngs. On the night of March 29, 1997, Riley
left the house and her children in Youngs care. After the children
were ready for bed, they and Young went into Rileys bedroom for treats.
Young gave sweets to some of the children and offered candy or
money to L.R., Rileys eleven-year-old daughter, if she would put on Rileys 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.
The States 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.
Sewall 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 Youngs 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
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 Tahirs 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 States 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, Youngs 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, Youngs 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
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 victims 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 jurys decision.
Marcum v. State, 725 N.E.2d 852, 858
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, thats what Delance said the day
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.).
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 Delances 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 (Delances 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 screaming. That rule provides that:
[a] statement is not hearsay if: The declarant testifies at the trial or
hearing and is subject to cross-examination concerning the statement, and the statement is
(A) inconsistent with the declarants testimony and was given under oath subject to
the penalty of perjury at a trial, hearing or other proceeding, or in
Young is correct in his contention that because Delances prior statement was apparently
not made under oath, it was not admissible under Rule 801(d)(1)(A). It
was, however, admissible under Rule 613 to impeach Delances denial of having heard
screaming. Miller, supra, § 613.101. Ordinarily, prior inconsistent statements are used
to impeach, not as substantive evidence of the matter reported. Id.
As a result the jury was left with Delances testimony that, on the
day after the event, he had reported screaming, and his denial at the
trial that he had heard it. Presumably, his credibility in contesting L.R.s
account that included screaming was significantly impaired, but the statement was not, as
the prosecutor described it, proof that Delance heard screaming. There is no
basis to conclude that the prosecutor intentionally finessed this rather elegant point of
evidence law, and all of this is insufficient to amount to prosecutorial misconduct.
In any event, Young made no objection to the prosecutors references to
Delances statement as support and requested no instruction on this point. Accordingly
any claim of error is waived unless it constitutes fundamental error. Robinson
v. State, 693 N.E.2d 548, 552 (Ind. 1998). This omission is plainly
not fundamental error. See Allen v. State, 716 N.E.2d 449, 453 (Ind.
IV. Ineffective Assistance of Counsel
Finally, Young claims that his trial counsel was ineffective. A defendant claiming
a violation of the right to effective assistance of counsel must establish the
two components set forth in
Strickland v. Washington, 466 U.S. 668 (1984); accord
Williams v. Taylor, 529 U.S. 362, 390-91 (2000). First, the defendant must
show that counsels performance was deficient. Strickland, 466 U.S. at 687.
This requires a showing that counsels representation fell below an objective standard
of reasonableness, id. at 688, and that the errors were so serious that
they resulted in a denial of the right to counsel guaranteed the defendant
by the Sixth Amendment, id. at 687. Second, the defendant must show
that the deficient performance prejudiced the defense. Id. To establish prejudice,
a defendant must show that there is a reasonable probability that, but for
counsels unprofessional errors, the result of the proceeding would have been different.
Id. at 694. A reasonable probability is a probability sufficient to
undermine confidence in the outcome. Id.
Counsel is afforded considerable discretion in choosing strategy and tactics, and we will
accord those decisions deference. Id. at 689. A strong presumption
arises that counsel rendered adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment. Id. at 690. The Strickland
Court recognized that even the finest, most experienced criminal defense attorneys may not
agree on the ideal strategy or the most effective way to represent a
client. Id. at 689. Isolated mistakes, poor strategy, inexperience, and instances
of bad judgment do not necessarily render representation ineffective. Ingram v. State,
508 N.E.2d 805, 808 (Ind. 1987).
The two prongs of the Strickland test are separate and independent inquiries.
Thus, [i]f it is easier to dispose of an ineffectiveness claim on the
ground of lack of sufficient prejudice . . . that course should be
Williams v. State, 706 N.E.2d 149, 154 (Ind. 1999) (quoting Strickland,
466 U.S. at 697).
In this case, Young alleges nine instances of deficient performance by trial counsel,
two of which are failures to preserve the issues discussed in Parts II
and III. The other allegations include that defense counsel did not:
advise Youngs daughter about a separation of witnesses order, cross-examine a doctor who
testified for the State about L.R.s physical injuries, confront L.R. concerning inconsistencies in
her statements, object to additional parts of the States closing argument, establish a
foundation for Rileys testimony, or use evidence that the State had removed L.R.
from her mothers care. Young further alleges that defense counsel fell asleep
during a meeting with him. In its order on Youngs motion to
correct error, the trial court addressed Youngs counsels failure to advise his daughter
and present her testimony and to cross-examine the doctor and concluded that:
taken as a whole, counsels performance was objectively reasonable. Second, the Court
finds that, even if counsels performance were deficient, the victims testimony, the physical
findings made by the doctor the day after the crime, and the finding
of semen in her rectal area constitute overwhelming evidence of Youngs guilt such
that jurys verdict and Youngs trial were reliable and fair.
We cannot conclude that the trial court abused its discretion in making these
Even if there were isolated instances of deficient performance, we need not address
every allegation in detail because Young has failed to establish prejudice. L.R.
described the attack in great detail. Her testimony was corroborated by the
physical evidence, including the injuries to her genital and rectal area and the
semen in her rectal area. The trial court found the evidence so
persuasive that the claimed errors would not have affected the result of the
trial. We cannot say this finding was clearly erroneous. Although the
trial courts finding of lack of prejudice was with respect to only two
of the nine alleged shortcomings in trial counsels performance, we reach the same
result on Youngs remaining claims. On this record, Young has not persuaded us
that there is reasonable probability that the result of the proceeding would have
been different if his trial counsel had performed adequately. Accordingly, he cannot
succeed on his claim of ineffective assistance of counsel.
The judgment of the trial court is affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN and RUCKER, JJ., concur.
Young also alleges that this failure to have the DNA tested violated
Indiana Trial Rule 34, Art. I, Section 12 of the Indiana Constitution, and
the Sixth and Fourteenth Amendments to the United States Constitution. Because he
does not present cogent arguments in support of these contentions, they are waived.
Former Ind.Appellate Rule 8.3(A)(7) (now App.R. 46(A)(8)).
The term refresh recollection was not used by either the prosecutor or
the witness. However, the following exchange was in substance used for this
purpose. On cross-examination, defense counsel asked, And you didnt hear any screaming,
did you? Delance responded, No. On redirect,
Q (State): Okay. And did you tell the detective [the day
after the attack] that you heard [L.R.] scream? Did you tell her
A (Delance): I cant remember, because that was a long time ago.
Q: Okay. Delance, Im going to show you what Ive marked
as States Exhibit Number 10, and ask if you recognize this.
Q: Okay. Is this the, a statement that you, youve seen
Q: Okay. Is this the statement that you gave to the police
officer on that day?
Q: Okay. Didhave you read it over before today?
Q: Okay. Delance, Im going to direct your attention to the
bottom of page 2, and ask you to read over from the question
that begins, was she screaming. Just read it to yourself. Let
me know when youre finished. Delance, at that time that you talked
to the detective did you tell her that you heard your sister scream?
A: I think I did.
Although a trial practice professor might demand that the questioner ask the witness
if his memory is refreshed and remove the item before continuing, the foregoing