ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Robert W. Hammerle Karen M. Freeman-Wilson
Indianapolis, Indiana Attorney General of Indiana
Joseph M. Cleary Monika Prekopa Talbot
Indianapolis, Indiana Deputy Attorney General
Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
ORVILLE CARTER, )
)
Appellant (Defendant Below), )
)
v. ) No. 49S00-0001-CR-00041
)
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Cale Bradford, Judge
Cause No. 49G03-9907-CF-099435
September 5, 2001
SHEPARD, Chief Justice.
Appellant Orville Carter received a sixty-year prison sentence for
molesting his autistic eight-year-old daughter. He claims that the child’s
word was not sufficient evidence. He also asserts that the trial court
committed fundamental errors that rendered his trial unfair. We affirm.
Facts and Procedural History
M.C. is a highly intelligent child who sometimes makes inappropriate
comments because she is autistic. On May 25, 1999, M.C.’s mother Jessica
Carter talked with her about subjects that are “personal” and not for
public discussion.[1] M.C. asked if weather was personal, and Jessica said
no. M.C. then asked “if someone showing you their w[ie]nie was a personal
thing.” (R. at 140.)
M.C. went on to tell Jessica that Carter, M.C.’s father, came into her
room one night and had M.C. touch his penis, then put it in her mouth.
Jessica asked M.C. what that felt like, and M.C. replied that it felt like
rubber.
Jessica told M.C. that other people would want to talk to her, and
that M.C. should tell them the same story. She immediately sought advice
at M.C.’s school, where she happened to encounter Dr. Robin Murphy, a
psychologist specializing in autism who had worked with M.C. on three or
four previous occasions. At the urging of school authorities, Jessica then
took M.C. to the Family Advocacy Center for a videotaped interview with
police officer Kathy Graban, where M.C. related the same story.
Officer Graban found it curious that M.C. “blurted out” her story
unprompted. (R. at 183.) On Dr. Murphy’s advice, she visited M.C.
unannounced on June 4th to make sure that this spontaneity was the result
of autism rather than coaching. M.C.’s story remained consistent.
The State charged Carter with child molesting, a class A felony, and
with being an habitual offender.
M.C. was the first witness at trial. The prosecutor encountered
difficulty immediately, when M.C. was unable to identify Carter in the
courtroom.[2] She did elicit a disjointed version of M.C.’s story.[3]
M.C.’s responses then became so rambling and incoherent that the prosecutor
concluded her direct examination.
On cross-examination, M.C. admitted that she did not remember
Carter’s attorney, whom she had met previously, and said, “I do get
confused. I mostly forgot about you . . . .” (R. at 133.) When asked “Do
you get confused a lot with things that have happened?”, M.C. acknowledged,
“Yes.” (Id.) She did reassert, however, that her father “went to jail
because he-- because he done something-- touched my w[ie]nie. . . He made
me touch his w[ie]nie, I should say.” (R. at 134.)
Jessica Carter testified next. On direct examination, she described
what M.C. said about the molestation. On cross, defense counsel elicited
the fact that three weeks after this disclosure, Jessica overheard M.C.
talking to herself about a schoolmate who said that “if you put a w[ie]nie
in your mouth it grows.” (R. at 147.) Jessica questioned M.C. further,
and asked her again about the incident involving Carter. According to
Jessica, M.C. said that “daddy woke her up and then daddy pulled his big-
boy shorts down . . . .” (R. at 148.) Jessica pointed out to M.C. that
“big-boy shorts” was their household term for briefs, which M.C.’s younger
brother wore but her father did not. M.C. “looked a little confused and []
said, well, maybe it wasn’t daddy.” (R. at 149.)
Jessica also testified on cross-examination that M.C. is “[v]ery
imaginative.” (R. at 150.) She said that M.C. sometimes imagines things
such as earthquakes and tornadoes that become very real in her mind.
The State next called Dr. Murphy as an expert witness. Officer Graban
took the stand last and the State introduced M.C.’s videotaped May 25th
interview. Officer Graban testified that M.C.’s story remained consistent
on her June 4th unannounced visit.
Carter did not call any witnesses. The jury found him guilty of child
molesting, and he pled guilty to being an habitual offender. The court
entered a judgment of conviction and imposed a sixty-year sentence.
The Evidence Was Sufficient
We neither reweigh evidence nor judge witness credibility when
evaluating sufficiency claims. Dinger v. State, 540 N.E.2d 39 (Ind. 1989).
We look to the evidence and to the reasonable inferences from that
evidence that support the verdict. Id. We affirm if we find evidence of
probative value from which a reasonable trier of fact could infer guilt
beyond a reasonable doubt. Id. at 39-40. A molested child’s
uncorroborated testimony is sufficient to sustain a conviction. Id. at 40.
Carter argues that the sole evidence against him, i.e. M.C.’s
story,[4] was unreliable because M.C. could not identify her father in the
courtroom and because, although she referred to her “dad” in most of her
testimony, at one point she said, “And-- [my brother]-- he just told me to
touch it . . . .” (Appellant’s Br. at 6; R. at 131.) He also cites
Jessica’s testimony that M.C. sometimes imagined things such as storms that
became real in her mind, and that M.C. expressed uncertainty about her
attacker’s identity after she remembered that he wore briefs.
The problem Carter faces is that, with few exceptions, juries decide
whether witnesses are to be believed. Rodgers v. State, 422 N.E.2d 1211,
1213 (Ind. 1981). Carter invokes the “incredible dubiosity” rule, under
which we may encroach upon this prerogative if a witness’s testimony is
inherently improbable or coerced, equivocal, or wholly uncorroborated.
Lott v. State, 690 N.E.2d 204, 208 (Ind. 1997)(citing Gaddis v. State, 253
Ind. 73, 251 N.E.2d 658 (1969)).
M.C.’s story is not inherently improbable. It is uncorroborated, but
by its very nature child molestation often occurs without witnesses or
physical evidence. As noted above, the fact that the only evidence is the
child victim’s statement does not require reversal. Dinger, 540 N.E.2d at
39-40.
Carter says that M.C. equivocated by making contradictory statements.
The State counters by pointing out that M.C. told the same story four
different times,[5] before and after the one time she expressed some
uncertainty about her molester’s identity. Furthermore, although M.C.
failed to recognize Carter in the courtroom, she named her father as her
attacker in all four statements, and Carter was undisputedly the only
father figure in her life.[6]
Carter presents a close case, but the evidence was not so equivocal as
to be incredibly dubious. “A conviction for rape can rest on the
uncorroborated testimony of the victim even though there is equivocation or
inconsistency in that testimony.” Peters v. State, 542 N.E.2d 1340, 1342
(Ind. 1989) (citation omitted). The same is true of molestation, and here
a reasonable jury could have accepted M.C.’s four consistent accusations as
true beyond a reasonable doubt.[7]
II. No Fundamental Error
Carter claims that a number of errors, each discussed below, rendered
his trial unfair. (Appellant’s Br. at 1.) Carter has waived each of these
claims unless they rise to the level of fundamental error.[8] Helton v.
State, 539 N.E.2d 956, 957 (Ind. 1989).
We recently re-emphasized the extremely narrow applicability of the
fundamental error doctrine in Taylor v. State, 717 N.E.2d 90, 93-94 (Ind.
1999). A fundamental error is “a substantial, blatant violation of basic
principles of due process rendering the trial unfair to the defendant.”
Id. at 93. It applies only when the actual or potential harm “cannot be
denied.” Id. (citing Ford v. State, 704 N.E.2d 457, 461 (Ind. 1998)). The
error must be “so prejudicial to the rights of a defendant as to make a
fair trial impossible.” Taylor, 717 N.E.2d at 93 (quoting Barany v. State,
658 N.E.2d 60, 64 (Ind. 1995)). An appellate court receiving contentions
of fundamental error need only expound upon those it thinks warrant relief.
It is otherwise adequate to note that the claim has not been preserved.
Of Carter’s six grievances, one presents a plausible claim for
fundamental error and we examine it at length. The remaining claims are
modest ones that do not warrant exception to the general rule requiring
preservation of error.
A. Expert Vouching. Carter asserts that the court erred by
permitting Dr. Murphy to testify that autistic children cannot lie.
(Appellant’s Br. at 9.) He claims that Dr. Murphy’s testimony violated
Ind. Evidence Rule 704(b): “Witnesses may not testify to opinions
concerning intent, guilt, or innocence in a criminal case; the truth or
falsity of allegations; whether a witness has testified truthfully; or
legal conclusions.”
In this case, the special problems that arise when a child accuses a
family member of molestation were compounded by M.C.’s autism. We expect
jurors to draw upon their own personal knowledge and experience in
assessing credibility and deciding guilt or innocence. See Lamar v. State,
514 N.E.2d 1269 (Ind. 1987). When they are faced with evidence that falls
outside common experience, we allow specialists to supplement the jurors’
insight. Indiana Evidence Rule 702(a) says: “If scientific, technical,
or other specialized knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or education, may testify
thereto in the form of an opinion or otherwise.”
Dr. Murphy described her prior contacts with M.C. as very sporadic and
said that she had not seen M.C. since the prior year. She testified that
autistic children generally “have a very, very difficult time manipulating
what’s in someone’s mind,” i.e., deliberately deceiving others. (R. at
159.) She substantiated this conclusion by describing a study in which
autistic children could follow an instruction to lock a box to prevent a
“thief” from taking the candy inside, but could not lie on command and tell
the “thief” that there was no candy in the box. (R. at 158-59.) Although
Dr. Murphy did not at any point directly state an opinion that M.C. was
telling the truth, the jury could easily have drawn a logical inference:
autistic children do not deliberately lie, M.C. is autistic, therefore M.C.
is not lying.
On cross-examination, defense counsel attacked this inference by
probing further into whether autistic children are capable of relating
events that did not actually happen. Dr. Murphy testified that autistic
children lack imagination. She said, “I’ve never had a child with autism
lie to me about what actually occurred. That’s not to say that they
absolutely will never lie. But, when they do, they tend to be very poor
liars.” (R. at 165.) But she did concede, “I never talk in absolutes. I
would never say that absolutely every child with autism absolutely has no
imagination and is incapable of making up something that didn’t happen.”
(R. at 166-67.) On re-cross, she testified that autistic people might
associate occurrences with no relationship to each other and “put them
together into an event.” (R. at 171-72).
At this point the jury could have logically concluded that M.C. was
not deliberately lying about the molestation, but had confused different
events and offered an inaccurate account of what happened. M.C. herself
demonstrated that this could happen. In her videotaped statement, she
described with apparent sincerity how it rained the day she told her mother
about the molestation, and how she used an umbrella for five minutes.
Jessica Carter testified that it was sunny that day. Carter’s attorney
referred to this inconsistency when cross-examining Dr. Murphy:
Q. Would you be surprised if a child reported, when she was sitting
on a blanket, that it was raining when in fact it never rained that
day?
A. I’d figure that there was a leak in the ceiling or something--
from the pipes. I mean, I just don’t think that-- something happened
that made that association in her mind.
Q. Do you think an autistic child is capable of doing just that?
A. That’s what I’m trying to say. I mean, this is one of the
characteristics of children with autism . . . .
(R. at 166.)
In summary, we conclude based on the entire context of the expert’s
testimony that she came close to, but did not cross the line into
impermissible Rule 704(b) vouching. Although her statements that autistic
children find it difficult to deliberately deceive others may have been
persuasive, the jury still had to draw its own inference as to whether
M.C.’s story was an accurate account.
B. M.C.’s Videotaped Statement. Carter argues that M.C.’s
videotaped statement was unreliable because upon first hearing M.C.’s story
Jessica told M.C. that other people would want to talk to her and she
should tell them the same story. (Appellant’s Br. at 5.) He claims this
is coaching, but did not preserve any claim during trial.
C. Hearsay Evidence of M.C.’s Story. Carter asserts that Jessica
Carter and Officer Graban impermissibly bolstered M.C.’s credibility by
repeating at trial what M.C. told them about the molestation. (Appellant’s
Br. at 4.) Indiana’s “protected persons” statute makes certain hearsay
statements of children under age fourteen and certain mentally disabled
persons admissible in sex crime cases. Ind. Code Ann. § 35-37-4-6 (West
1993 & Supp. 1994).
After a hearing required by statute, the court found M.C.’s statements
to Jessica reliable and it gave the requisite jury instruction immediately
after Jessica repeated M.C.’s statements at trial. Id. at § 6(d)(1), (g);
(R. at 106-12, 123).
Carter did not object at trial to this testimony.
D. An Alias on the Charging Information. The charging information
that went to the jury room along with the instructions showed the alias
“a/k/a Arvine E. Durham” after Carter’s name.[9] He claims that this
created an unfair inference of previous criminal activity, (Appellant’s
Br. at 4), but did not object at trial.
E. M.C.’s Competency as a Witness. Carter argues that M.C. was
not a competent witness because the record does not show that she knew what
an oath meant and that she was compelled to tell the truth. (Appellant’s
Br. at 5.)
At the pre-trial hearing, M.C. asserted that she “tell[s] the most
truth ever” before she was asked the first question. (R. at 119.) The
prosecutor then asked M.C. if it would be the truth or a lie if she said
that her (white) suit was black, and M.C. correctly identified the lie.
When asked “Is it important to tell the truth?”, M.C. said yes, “[b]ecause
you don’t want people to end up in jail. Who lied has to-- who lies would
get the wrong person into jail.” (R. at 120.) No objection was lodged.
F. Limits on Jessica’s Cross-Examination. Carter claims the court
violated his right to confront and cross-examine Jessica Carter by
sustaining the State’s objections to various questions his lawyer asked her
on cross-examination. (Appellant’s Br. at 22-24.)
Carter’s counsel did not make any offers of proof. In 1994, we
adopted Ind. Evidence Rule 103(a)(2):
Error may not be predicated upon a ruling which admits or excludes
evidence unless a substantial right of the party is affected, and . .
. [i]n case the ruling is one excluding evidence, the substance of the
evidence was made known by a proper offer of proof, or was apparent
from the context within which questions were asked.
G. All Things Considered. At the end of the day, we cannot conclude
that these defects amounted to a substantial, blatant violation of due
process, the test for ordering reversal.
Conclusion
We affirm Carter’s conviction and sixty-year sentence.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.
-----------------------
[1] The conversation stemmed from a recent visit during which M.C.’s
grandmother explained menstrual cycles to the child.
[2] The following exchange took place:
Q. Is your dad in the courtroom?
A. Well, he must be.
Q. I want you to look over on that side of the room. Do you see your
dad?
A. No.
Q. Look right over there. See the man with the striped shirt? Who is
that man?
A. He doesn’t seem to be my dad. It’s not.
[Prosecutor]: Could you take your glasses off, please? (Request made
of the Defendant)
DIRECT EXAMINATION RESUMED
Q. Does it look like your dad if he has his glasses off?
A. Well, he-- are you my dad? Over there, are you?
Q. Can you see him from here?
A. I see him.
Q. Okay. Don’t worry about that.
A. Man-- man with the striped shirt, are you my dad?
(R. at 130-31.)
[3] Q. . . . Do you remember why your dad went to jail?
A. ‘Cause he touched my w[ie]nie.
Q. Tell me about that.
A. It wasn’t a dream though, but he had truth that-- I just don’t want
him to go to jail though.
Q. I want you to tell me about him touching your w[ie]nie.
A. Well,--
Q. Where did that happen?
A. At night-- in my bedroom at night.
Q. And how did it happen?
A. And-- [my brother]-- he just told me to touch it-- touch it with my
hand first, then I touched it in my mouth.
Q. What did it feel like?
A. Rubber, to both.
Q. To both?
A. Yeah.
Q. What did your dad say to you-- when he asked you to touch it what did
he say?
A. Well, he told me not to tell. He said, don’t-- go touch my w[ie]nie,
but tell mommy.
Q. All right. Did you tell your mommy?
A. Yes.
Q. What did you tell your mommy?
A. The same thing-- things that happened. All the truth. I told her all
the truth.
(R. at 131-32.)
[4] At oral argument, the State also cited Jessica’s testimony that she
found M.C.’s dirty underwear in Carter’s dresser drawer after he was
arrested. (R. at 145.) This fact was not linked to the incident charged,
and does little to bolster the State’s case.
[5] To her mother on May 25, 1999; later that day in the videotaped
interview; to Officer Graban ten days later; and at trial. (Appellee’s Br.
at 8.)
[6] The State suggests that M.C. may have failed to recognize Carter
because he changed his appearance by shaving off facial hair, changing his
hairstyle, and/or dressing differently than he usually did. (Appellee’s
Br. at 8.) The record, however, contains no evidence to support this
contention.
[7] Carter also argues that the State did not sufficiently prove that the
molestation occurred between July 10, 1998, and May 25, 1999, as alleged in
the charge. (Appellant’s Br. at 7.) Dr. Murphy testified that autistic
children often lack a sequential sense of time. (R. at 167.) In her May
25th taped statement, M.C. thought the incident occurred around the end of
winter or beginning of spring, after Christmas, when she was still eight.
(State’s Exh. 1.) This would have been during the time period alleged. At
trial, M.C. twice said she forgot when the incident occurred, then said it
happened a few days before her July 10th birthday, which would have fallen
outside the time alleged. (Appellant’s Br. at 7; R. at 134-35.)
Carter’s argument fails in any event because in Smith v. State, 241
Ind. 1, 10, 168 N.E.2d 199, 203 (1960), we said:
[T]he offense must be proved to have been committed prior to the
finding of the indictment, and . . . the offense must be proved to
have been committed within the time specified by the statute of
limitations, and except where a special day is essential or where time
is the essence of the offense, the time of the commission of the
offense as averred in the indictment is not material, and the proof is
not confined to the time charged.
(quoting Wharton’s Crim. Evidence, 11th Ed., § 1039, pp. 1824-26). We held
in Barger v. State, 587 N.E.2d 1304, 1307 (Ind. 1992), that “time is not of
the essence in the crime of child molesting.” (Citations omitted.) We
noted that children often forget specific dates, particularly in the common
situation where the crime is not reported immediately. Id. An exact date
is important only in situations such as those where a victim’s age at the
time the crime occurred falls near the dividing line between classes of
offenses. Id. Here, Carter does not argue that the specific timing of the
alleged crime was material, and the statute of limitations would not have
run until M.C.’s thirty-first birthday. Ind. Code Ann. § 35-41-4-2(c)(West
1998).
[8] All but the last of Carter’s claims involve evidence or testimony to
which his counsel did not object at trial. Defense counsel did argue at a
pretrial hearing that M.C. was not a competent witness and that her
videotaped interview should not be admitted at trial. (R. at 122; see
sections B. and E. below.) However, a defendant must reassert his
objection at trial contemporaneously with the introduction of the evidence
to preserve the error for appeal. Clausen v. State, 622 N.E.2d 925, 927
(Ind. 1993); Hoover v. State, 582 N.E.2d 403, 408 (Ind. Ct. App.
1991)(adopted and incorporated by reference in Hoover v. State, 589 N.E.2d
243 (Ind. 1992)(videotaped statement admitted without objection during
child molestation trial; “[f]ailure to object at trial when the evidence is
offered results in waiver of the alleged error even where the defendant has
made a pre-trial motion to suppress the evidence.”)
As discussed in detail in section F. below, Carter’s final claim is
waived because he failed to make an offer of proof. He must therefore show
fundamental error on this claim as well, to be entitled to relief.
[9] At sentencing, Carter’s attorney explained that the alias became part
of Carter’s records when Carter was arrested on an unrelated prior charge
and had the name of his half-brother in his wallet.