Eldridge v. State

580 N.E.2d 726, 1991 Ind. App. LEXIS 1883, 1991 WL 231344
CourtIndiana Court of Appeals
DecidedNovember 13, 1991
Docket48A04-9104-CR-105
StatusPublished
Cited by1 cases

This text of 580 N.E.2d 726 (Eldridge v. State) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Eldridge v. State, 580 N.E.2d 726, 1991 Ind. App. LEXIS 1883, 1991 WL 231344 (Ind. Ct. App. 1991).

Opinion

STATON, Judge.

Kenney Leon Eldridge appeals his conviction for incest, a Class D felony, 2 raising the following two issues for our review:

I. Whether Eldridge was deprived of a fair trial by improper cross-examination by the prosecutor.
II. Whether Eldridge received ineffective assistance of trial counsel.

We affirm.

L.

Cross-Exomination

Eldridge chose to testify at trial. During cross-examination, the prosecutor asked the following questions:

Q. Its [sic] a fact that you've been in the courtroom throughout the testimony of every other witness haven't you?
A. Yes, sir.
Q. You have been able to listen to their testimony as they testify.
MR. WITHERS: Your Honor, this is improper questioning, its [sic] only to prejudice the jury. It has nothing relevant to this case.

Record, p. 516. The trial judge permitted the questions, although the second remained unanswered. Eldridge argues that the prosecutor was improperly permitted to discredit him for the exercise of his right to confront witnesses and the right to testify in his own defense. 3

Eldridge's claim that the prosecutor's cross-exam questions were impermissible comments on his right to testify is without merit. First, the question raised by the prosecutor does not "comment" on his right to testify or infringe on that right in any way. Second, while many cases prohibit the prosecutor from commenting on a defendant's failure to testify, El dridge cites no case which supports his contention that a prosecutor's comment on his decision to testify is likewise impermis-gible.

Eldridge's argument that the prosecutor's questions were impermissible comments on his right of confrontation is similarly without merit. When the defendant chooses to take the stand to testify, he is subject to cross-examination like any other witness, Brown v. United States (1958), 356 U.S. 148, 154-155, 78 S.Ct. 622, 626-27, 2 L.Ed.2d 589 reh'g denied 356 U.S. 948, 78 S.Ct. 776, 2 L.Ed.2d 822; Denton v. State (1983), Ind., 455 N.E.2d 905, 908. This includes the ability of the prosecutor to explore the possibility that the defendant has conformed his testimony to that of the other defense witnesses who testified in his presence. We note that Eldridge has cited no authority holding that a prosecutor may not comment on the defendant's exercise of his right to confrontation. Eldridge's exercise of that right was not impaired. He was able to conduct a full cross-examination of all witnesses against him, was able to put on his own evidence, and was present throughout trial.

IL.

Assistance of Counsel

Eldridge claims that he received ineffective assistance of counsel. Upon re *729 view, the assistance of counsel is measured against a "reasonably effective assistance" standard. Burr v. State (1986), Ind., 492 N.E.2d 306, 307-308. Thus, judicial seruti-ny should be deferential and undistorted by hindsight, with isolated poor strategy, inexperience, or bad tactics not implying ineffectiveness; the appellant must show "strong and convincing evidence" to overturn a presumption of competence. Burr, supra, at 308, citing Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. When determining whether a defendant has received ineffective assistance of counsel, we engage in a two-step analysis. First, we must determine whether the acts or omissions of counsel are outside the wide range of professionally competent assistance. If so, we must then determine whether such acts or omissions prejudiced the defendant. Clark v. State (1990), Ind., 561 N.E.2d 759, 762.

Eldridge first claims that counsel was ineffective for his failure to object to the introduction of evidence of other alleged acts of sexual misconduct. The prosecution introduced evidence that when El-dridge was seven years old, he engaged in digital penetration of the four-year-old daughter of his step-father's sister. His family was living with that family at the time. The prosecution also introduced evi-denee that Eldridge asked thirteen-year-old T.P. to perform oral sex on him and to have sexual intercourse with him. Evidence was also introduced that he attempted to expose his genitalia to T.P. TP. is the daughter of another sister of Eldridge's step-father.

Generally, evidence of past misconduct is inadmissible in a criminal prose-ecution. Miller v. State (1991), Ind., 575 N.E.2d 272, 275. However, an exception to this rule is recognized when the acts sought to be introduced evidence a depraved sexual instinct on the part of the accused. Id. at 276. Acts showing a depraved sexual instinet include those, when considered with other circumstances, which have a tendency to connect an accused with a crime of that character, and which lend credence to a victim's statement which would otherwise seem improbable. Id. The acts offered need not be identical to the acts charged so long as the same sexual instinct is involved. Id. Moreover, the remoteness of the uncharged acts does not render them inadmissible, but goes to their weight. Id.

Here, trial counsel may well have concluded that the acts charged were admissible under the depraved sexual instinet exception. Both acts involved sexual conduct with young girls who were members of Eldridge's family. In failing to object to their admission, we cannot say that counsel transgressed the bounds of professionally competent assistance.

Eldridge also argues that trial counsel was ineffective in failing to object when the victim's aunt and step-mother and the social worker assigned to the case each testified that the victim had told them of the incident. He relies upon Stone v. State (1989), Ind.App., 536 N.E.2d 534, transfer denied, in which our Fourth District held that it was error to allow six witnesses to corroborate the testimony of a child molesting victim. However, the Stone court distinguished that case from Buttram v. State (1978), 269 Ind. 598, 382 N.E.2d 166, in which our supreme court found no error where three such witness were allowed to testify. 4 The distinguishing factor in Stone was the number of witnesses presented by the prosecution. Here, like in Buttram, three ' corroborating witnesses were presented. Moreover, the witnesses each presented a different version of the facts. Trial counsel was not ineffective for failing to object to this testimony.

Eldridge finally argues that trial counsel was ineffective for failure to make an offer to prove when the trial judge

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Bluebook (online)
580 N.E.2d 726, 1991 Ind. App. LEXIS 1883, 1991 WL 231344, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eldridge-v-state-indctapp-1991.