Attorney for Appellant
Kurt A. Young
Nashville, IN
Attorneys for Appellee
Steve Carter
Attorney General of Indiana
Eileen Euzen
Deputy Attorney General
Indianapolis, IN
IN THE
INDIANA SUPREME COURT
RAYMOND LOVE,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
)
) Supreme Court No.
) 49S00-0008-CR-491
)
)
)
)
)
)
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Cale Bradford, Judge
Cause No. 49G03-9905-CF-093435
ON DIRECT APPEAL
January 23, 2002
SULLIVAN, Justice.
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 medication 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.
Background
The facts most favorable to the trial court’s judgment indicate that
Defendant repeatedly molested the victim, his daughter, from 1997 through
1999. When the victim was nine years old, she began having contact with
her father. The victim had previously been molested by her step-father and
told her father about it. She testified that soon after she confided in
Defendant, he began having sex with her. Defendant told his daughter he
was molesting her to “put it back in order from what [her] step-dad did.”
The victim experienced recurring urinary tract infections and her doctor
informed the victim’s mother that she was suffering from trichomonas, a
sexually transmitted disease. The victim eventually told her mother that
Defendant had been having sex with her.
Defendant was convicted of three counts of Child Molestation, a Class
A felony.[1] He then pled guilty to being a habitual offender.[2]
I
Defendant seeks to have his convictions set aside on grounds that the
charging information filed by the State alleged facts that were different
from the evidence actually presented to the jury as to Defendant’s guilt.
Appellant’s Br. at 13.
The charging information alleged three time periods during which the
molestations occurred. The first count alleged that Defendant molested the
victim on or between January 12 and February 14, 1998. Count two alleged
that molestation occurred on or between August 1 and November 30, 1998.
Count three alleged that molestation occurred on or between March 1 and 31,
1998.
The State presented evidence at trial that the molestation began
sometime “close to winter” while the victim lived at 33rd 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, 1999.
(Id.)
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 information 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
State’s 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 Appellant’s 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.
II
Defendant contends that there was insufficient evidence to convict
Defendant of child molestation because his conviction was based on the
inherently incredible and dubious testimony of the victim. Appellant’s Br.
at 16. Defendant argues that the rule of “incredible dubiosity” applies
because the victim’s testimony was coerced and was inherently improbable.
During the trial, the victim testified that her father began
molesting her soon after she told him that she had been molested by her
step-father. She testified that Defendant had sex with her many times
during 1997 and 1998. After she had been diagnosed with trichomonas, a
sexually transmitted disease, the victim’s mother asked her with whom she
had been having sex. The victim’s mother testified that her daughter
initially denied that Defendant had had sex with her but eventually told
her that he had. The victim testified that it was hard to tell her mother
that Defendant was having sex with her, but that she told her because she
wanted it to stop.
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 jury’s function to judge the credibility of a witness.
White 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 victim’s testimony to be coerced, and there was
nothing inherently improbable or contradictory about her testimony.[3]
Defendant suggests that the victim’s mother coerced her into testifying,[4]
but Defendant cross-examined the victim, questioning her credibility and
whether her testimony had been coerced. It was within the jury’s province
to evaluate the witness’s credibility, and the jury chose to believe the
victim.
III
Defendant contends that his convictions should be set aside because
the trial court allowed testimony that Defendant argues was impermissibly
prejudicial.
The victim had suffered from trichomonas, a sexually transmitted
disease. On June 11, 1999, the trial court ordered jail personnel to test
Defendant for trichomonas, but Defendant was not tested until July 29,
1999. When he was finally tested, Defendant tested negative for
trichomonas.
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 State’s 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 Neilander’s testimony regarding Defendant’s 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
witness’s 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)).
Sergeant 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 Neilander’s 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.
Conclusion
We affirm the judgment of the trial court.
SHEPARD, C.J., and BOEHM, J., concur.
RUCKER, J., concurs in parts I and II and dissents to part III with a
separate opinion in which DICKSON, J., concurs.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
KURT A. YOUNG STEVE CARTER
Nashville, Indiana Attorney General of Indiana
EILEEN EUZEN
Deputy Attorney General
Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
RAYMOND LOVE, )
)
Appellant-Defendant, )
) Supreme Court Cause Number
v. ) 49S00-0008-CR-491
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Cale Bradford, Judge
Cause No. 49G03-9905-CF-093435
ON DIRECT APPEAL
January 23, 2002
RUCKER, Justice, concurring in part and dissenting in part
I concur in parts I and II and dissent to part III. Evidence that it
was possible Love could have obtained medication from another inmate raises
an inference based on pure speculation and conjecture. The inference of
course is that Love indeed obtained such medication thereby accounting for
his negative test result for a sexually transmitted disease. In my view
the trial court erred by allowing this testimony into evidence. “An
inference cannot be based upon evidence which is uncertain or speculative
or which raises merely a conjecture or possibility.” Slip op. at 10
(quoting Vasquez v. State, 741 N.E.2d 1214, 1216 (Ind. 2001)). However,
because there was substantial evidence of Love’s guilt, the error was
harmless. Therefore, I agree with the majority’s conclusion that the
judgment of the trial court should be affirmed.
DICKSON, J., concurs.
-----------------------
[1] Indiana Code §35-42-4-3 (1998).
[2] Id. § 35-50-2-8 (1998).
[3] Defendant cites Penn v. State, 237 Ind. 374, 146 N.E.2d 240
(1957), where this Court found the testimony of a witness to be inherently
contradictory. In Penn, a sixteen-year-old girl testified that she became
pregnant by the defendant in that case. The court found the circumstances
described in her testimony to be so bizarre as to make her testimony
inherently improbable. In this case, there was nothing in the victim’s
testimony that seems impossible.
[4] Defendant argues that “[the victim’s mother] wished to cause
Defendant to divorce his current wife (Appellant’s Br. at 18)