ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MARK MAYNARD JEFFREY A. MODISETT
Anderson, Indiana Attorney General of Indiana
J. T. WHITEHEAD
Deputy Attorney General
Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
EDWARD D. BROWN, )
)
Appellant-Defendant, )
) Supreme Court Cause Number
v. )
) 48S00-9802-CR-82
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MADISON SUPERIOR COURT
The Honorable Thomas Newman, Jr., Judge
Cause No. 48D03-9612-CF-421
ON DIRECT APPEAL
May 26, 2000
RUCKER, Justice
Case Summary
After a trial by jury Edward Brown was convicted of two counts of
child molesting as Class A felonies. He was also adjudged a habitual
offender. In this direct appeal Brown raises two issues for our review
which we rephrase as follows: (1) did the trial court err by admitting the
deposition testimony of the two child witnesses, and (2) did the trial
court err by allowing the State to amend the charging information at the
close of its case in chief after Brown had moved for a directed verdict.
We affirm.
Facts
Brown is the great-uncle of J.F. and D.F. The record shows that
several times during the summer and fall of 1996 Brown baby-sat the
children in his home. They were then seven and five years of age
respectively. On two occasions Brown ordered J.F. to perform fellatio on
him and J.F. complied. On one occasion D.F. witnessed the act. As a
result of this conduct the State charged Brown with two counts of child
molesting. The charging information alleged that the offenses occurred “on
or between various dates in August, 1996.” R. at 12. Brown was also
charged as a habitual offender. During the guilt phase of trial Brown
cross-examined J.F., pointing out inconsistencies between the child’s trial
and deposition testimony. In rebuttal the State sought to offer the entire
deposition into evidence. Over Brown’s objection the trial court admitted
the deposition without redaction. D.F. also testified during the guilt
phase of trial. Just before the close of its case in chief, the State
sought to introduce portions of D.F.’s deposition into evidence. Over
Brown’s timeliness objection the trial court allowed its admission.
After the State rested its case, Brown moved for a directed verdict on
grounds that the State introduced no evidence that the alleged offenses
occurred in August 1996. The State then orally moved to amend the charging
information to show that the offenses occurred on “various dates in 1996.”
R. at 260. The trial court granted the motion, the defense rested without
presenting evidence, and the jury ultimately returned a verdict of guilty
as charged. The trial court then reconvened the jury for the habitual
offender phase of trial. Thereafter Brown was adjudged a habitual
offender. The trial court sentenced Brown to consecutive fifty-year terms
for each count of child molesting and enhanced one of the counts by thirty
years for the habitual offender adjudication. This direct appeal followed.
Discussion
I.
Brown contends the trial court erred by admitting J.F.’s unredacted
deposition over his objection because it contained matters that were
immaterial, irrelevant, and prejudicial. Under the doctrine of
completeness a party may place the remainder of a statement or document
before the jury after the opposing party has introduced a portion of that
statement or document into evidence. Evans v. State, 643 N.E.2d 877, 881
(Ind. 1994) (ruling that a witness’ statement to police as well as his
deposition was admissible under the doctrine of completeness). This
doctrine prevents a party from misleading the jury by presenting statements
out of context. However, the remainder of the statement or document is
subject to the general rules of admissibility and portions found to be
immaterial, irrelevant, or prejudicial must be redacted. Id.
Before the trial court Brown did not move to redact the deposition,
nor did he object to its introduction on grounds that it contained alleged
immaterial, irrelevant, or prejudicial matters. Rather, Brown argued that
because he did not introduce any portion of the deposition into evidence,
the State was precluded from introducing any other portion of the
deposition. R. at 170. He also argued that at most the State was only
allowed to introduce those portions of the deposition that put the alleged
impeaching testimony into context. Id.[1] A party may not object on one
ground at trial and raise a different ground on appeal. Malone v. State,
700 N.E.2d 780, 784 (Ind. 1998). This issue is waived for review. Id.
Waiver notwithstanding, Brown still cannot prevail. In this appeal the
only alleged improper matter Brown brings to our attention is that
“[J.F.]’s deposition included a discussion of the fact that Brown was in
jail.” Brief of Appellant at 7. Brown neither elaborates on this
assertion nor explains how he was harmed. Further, our review of the
deposition shows that the “jail” reference had to do with whether J.F.
understood why Brown was in trouble with the police and why J.F. was being
questioned. The reference occurred in the context of the present offenses
as opposed to some other misconduct.[2] Thus, we do not see how Brown was
prejudiced by the introduction of the unredacted deposition. Assuming
without deciding that the jail reference was irrelevant or immaterial, the
context in which it was made convinces us that any error in failing to
redact the reference was harmless.
Brown contends the trial court erred also by admitting the deposition
of J.F. as well as portions of D.F.’s deposition because they were not
offered timely. Citing Indiana Evidence Rule 106, Brown argues the State
was required to offer the exhibits contemporaneously with his introduction
of portions of the exhibits. The Rule provides “when a writing or recorded
statement or part thereof is introduced by a party, an adverse party may
require at that time the introduction of any other part or any other
writing or recorded statement which in fairness ought to be considered
contemporaneously with it.” Id. (emphasis added). Seizing on the
highlighted language Brown complains the State did not seek to introduce
J.F.’s deposition until after the child left the witness stand and did not
introduce portions of D.F.’s deposition until just before the close of the
State’s case in chief.
Modeled after Federal Rule 106, Indiana Evidence Rule 106 codifies the
“completeness doctrine” discussed infra. Prior to our adoption of the
Rules a misleading impression created by taking matters out of context
could not be remedied on the spot. Rather, an opposing party was required
to wait until her own presentation of the evidence. See, e.g., Davis v.
State, 481 N.E.2d 387, 389 (Ind. 1985); Bass v. State, 136 Ind. 165, 170,
36 N.E. 124, 125 (1894). Rule 106 changed the timing of the introduction
of the remainder of the document. Now a party may, but is not required to,
introduce completeness evidence at an earlier stage of the trial. See 1
Stephen A. Saltzburg et al, Federal Rules of Evidence Manual 103-04 (7th
ed. 1998) (“[Federal] Rule 106 authorizes the introduction of completeness
evidence during the initial presentation of the writing or recording, but
does not require the adversary to introduce the material at that point.”)
(emphasis original); 1 Jack B. Weinstein & Margaret A. Berger, Weinstein's
Federal Evidence § 106.05[1] (Joseph M. McLaughlin, ed., Matthew Bender 2d
ed. 2000) (“The opponent against whom a document or recording is offered
has the right to wait and put the remainder in evidence on cross-
examination or as part of his or her case . . . .”). In the case before us
the State elected to introduce the deposition of J.F. and portions of the
deposition of D.F. at a time other than Brown’s initial presentation.
Although the State could have introduced the exhibits earlier, it was not
required to so. We find no error on this issue.
II.
Brown next contends the court erred by allowing the State to amend the
charging information at the close of its case in chief after Brown had
moved for a directed verdict. According to Brown, he was “unfairly deprived
of his opportunity to make his defense to the charges.” Brief of Appellant
at 9.
The court may permit the State to amend an indictment or information
at any time before, during, or after the trial “in respect to any defect,
imperfection, or omission in a form, which does not prejudice the
substantial rights of the defendant.” Indiana Code § 35-34-1-5(c). An
amendment is one of form and not substance if a defense under the original
information would be equally available after the amendment and the
accused's evidence would apply equally to the information in either form.
McIntyre v. State, 717 N.E. 2d 114, 125 (Ind. 1999). If the amendment does
not affect any particular defense or change the positions of either of the
parties, then it does not prejudice the defendant’s substantial rights.
Sides v. State, 693 N.E.2d 1310, 1313 (Ind. 1998).
To support his contention Brown cites Taylor v. State, 614 N.E.2d 944
(Ind. Ct. App. 1993). In that case the Court of Appeals reversed one of
six counts of child molesting finding error in the trial court permitting
the State to amend the information at the close of trial. Distinguishing
this court’s opinion in Lacy v. State, 438 N.E.2d 968 (Ind. 1982), the
Court of Appeals concluded that interposing an alibi defense is not the
only situation under which an amendment as to the date of an information is
material. Taylor, 614 N.E.2d at 947. “Rather the inquiry is whether the
amendment affects the defendant’s availability of a defense.” Id. In
Taylor, the defendant established through cross-examination that the victim
was not present in the State of Indiana during the time set forth in the
charging information. Id. at 946. The Information alleged the offense
occurred during a three-week period during the month of November 1990. Id.
The State rested and then sought to amend the information to conform with
the witness’ testimony, namely that the offense occurred between September
1990 and November 1990. Id. In determining that the trial court erred in
allowing the amendment the court noted:
It is clear the State could have originally drafted the charging
information alleging the offense occurred any time within the statute
of limitations. . . . It is equally clear that once the information
was drafted, the State had the authority to amend it at any time,
before during or after trial. . . . However, in the latter instance
an amendment is permissible only if it does not affect the
availability of a defense or the applicability of evidence which
existed under the original information.
Id. at 947 (internal citations omitted). Taylor is good law but it
provides Brown no refuge. Brown defended the charges against him by
questioning the victims’ version of events, pointing out their inability to
recall specific details, challenging their credibility by implying bias,
and suggesting that their testimony was influenced by others. Unlike the
defendant in Taylor, here the availability of Brown’s defense and the
applicability of the evidence under the original information was unaffected
by the amendment. We conclude Brown’s substantial rights were not
affected. Accordingly the trial court did not err in allowing the State to
amend the information.
Conclusion
The trial court did not err by admitting the deposition testimony of
the two child witnesses. Nor did the trial court err by allowing the State
to amend the charging information. We therefore affirm the trial court’s
judgment.
Judgment affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.
-----------------------
[1] On this latter point the record shows that Brown referred to
several different portions of the thirty-five-page deposition when cross-
examining J.F. Thus, the State moved for introduction of the entire
document.
[2] More specifically the record shows the following: in response to
defense counsel’s question of “do you know why [Brown] is in jail right
now,” J.F. responded, “Yes” . . . he “[d]id something wrong that he was not
supposed to do.” R. at 360 (Dep. at 19). Counsel then asked what Brown
did, and J.F. responded by recounting the act for which Brown was presently
on trial. Counsel replied “is that why he’s in jail?” Id. J.F. answered,
“Yes.” Id.