Haycraft v. State

760 N.E.2d 203, 2001 Ind. App. LEXIS 2225, 2001 WL 1671446
CourtIndiana Court of Appeals
DecidedDecember 28, 2001
Docket31A01-0103-CR-101
StatusPublished
Cited by30 cases

This text of 760 N.E.2d 203 (Haycraft 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
Haycraft v. State, 760 N.E.2d 203, 2001 Ind. App. LEXIS 2225, 2001 WL 1671446 (Ind. Ct. App. 2001).

Opinions

OPINION

BROOK, Judge.

Case Summary

Appellant-defendant Farrell Hayecraft ("Hayeraft") appeals his convictions and 190 year sentence for four counts of child molesting 1 as Class A felonies, one count of child molesting2 as a Class C felony, two counts of obscenity before a minor,3 Class D felonies, and one count of contributing to the delinquency of a minor4 as a Class A misdemeanor. We affirm his convictions and remand with instructions to revise his sentence to 150 years.

Issues

Haycraft raises five issues for our review, which we restate as follows:

I. whether the prosecutor committed misconduct;
II. whether the trial court properly admitted the testimony of a child witness;
III. whether the trial court properly admitted the testimony of an investigating officer;
IV. whether Haycraft received ineffective assistance of counsel; and
V. whether his 190 year sentence is manifestly unreasonable.

Facts and Procedural History

The relevant facts most favorable to the convictions reveal that during the summer of 2000, twelve-year-old AM. and his eight-year-old brother, W.M., stayed with Hayeraft, their forty-nine year-old grandfather, for extended periods of time. Hay-craft lived with his life partner, Bob Sutton ("Sutton"), in Harrison County, Indiana. During the course of the summer, Hay-craft inserted his penis and finger in A.M.'s anus, performed oral sex on A.M. and required A.M. to perform oral sex on him, furnished A.M. with alcoholic beverages and allowed A.M. to drive his truck, showed A.M. pornographic movies, and engaged in oral sex with Sutton in front of A.M. and WM., who was often present during the abuse.

AM.'s grandmother, Haycraft's ex-wife, suspected that Hayeraft was abusing A.M. and reported her suspicions to her daughter, A.M.'s mother,. AM.'s mother contacted Detective Charley Searber ("Sear-ber") of the Indiana State Police, and the State filed charges against Haycraft on August 25, 2000. On August 28, 2000, Scearber interviewed Hayceraft and obtained a taped confession from him. On [208]*208January 19, 2001, a jury found Haycraft guilty as charged, and the trial court subsequently sentenced him to 190 years' imprisonment.

Discussion and Decision

I. Prosecutorial Misconduct

Haycraft argues that the State violated his Fifth Amendment right against self-inerimination. In her closing argument, the prosecutor stated:

You've got [W.M.], and [A.M.], and more importantly, if you don't believe these two children because somehow they're less credible, then we have him (indicating). He tells you-He tells you that they did that as well in his confession. .... -So, if you don't believe [A.M.], then do you believe [A.M.] and [W.M.]? And if you don't believe them, how about him (indicating)? He told you it happened at least three times in his confession. So, you've got three people, nothing to controvert, no evidence to controvert those three people.

Generally, when a prosecutor makes a statement that the jury could reasonably interpret as an invitation to draw an adverse inference from the defendant's silence, the defendant's Fifth Amendment privilege against compulsory self-incrimination is violated. Taylor v. State, 677 N.E.2d 56, 60 (Ind.Ct.App.1997), trans. denied. If in its totality, however, the prosecutor's comment addresses evidence other than the defendant's failure to testify, we will not reverse. See id. "When the challenged language is not a direct comment on the defendant's failure to testify, we must decide whether the comment amounts to a summary of the evidence, rather than an attempt to com-Id. Further, we have held that comments referring to the uncontradicted nature of the State's case do not violate defendants' ment on the defendant's silence." Fifth Amendment rights,. Id. However, the State may not "comment on the uncon-tradicted nature of [its] case .... where the defendant alone could have contradict, ed the government's case ...." Rowley v. State, 259 Ind. 209, 213, 285 N.E.2d 646, 648 (1972).5

Haycraft erroneously argues that only his testimony that he gave a false confession could have contradicted his confession. Our focus is not on whether Hayeraft alone could have contradicted his confession, but whether he alone could have contradicted the government's case. See id. The facts indicate that both W.M. and Sutton were often present during the abuse, thereby making it possible for someone other than Hayeraft to have contradicted the State's case. Finally, since the comment does not directly refer to Haycraft's failure to testify, we must determine whether it amounts to a summary of the evidence or an impermissible reference to Hayeraft's silence. In its totality, the prosecutor referred to AM's and W.M.'s testimony and to Hayeraft's taped confession, which the State admitted into evidence. Thus, the comment summarized the evidence as a whole and did not constitute misconduct.

II. Witness Competency

Haycraft argues that the State failed to establish that W.M. was competent to testify against him. However, Haycraft failed to object to W.M.'s competency after the State called W.M. to testi-6 'Timely objection should be made to [209]*209any improprieties that may occur during the course of a trial so that the trial judge may be informed and may take effective action to remedy the error or grievance complained of"" Kochersperger v. State, 725 N.E.2d 918, 922 (Ind.Ct.App.2000) (citations omitted). "A defendant's failure to object to a child's testimony acts as a waiver of any question of the competency of the child as a witness." Id. Thus, Hay-craft's failure to offer a timely objection waives our review of this issue.

Waiver notwithstanding, the trial court has the discretion to determine if a child witness is competent based on the judge's observation of the child's demeanor and responses to questions posed by counsel and the court. Newsome v. State, 686 N.E.2d 868, 873 (Ind.Ct.App.1997). We require trial courts to establish that child witnesses are competent to testify by demonstrating that they (1) understand the difference between telling a lie and telling the truth, (2) know they are under a compulsion to tell the truth, and (3) know what a true statement actually is. Id.

Hayeraft argues that the State did not establish that W.M. knew the difference between the truth and a lie because he was only able to articulate an example of the truth. However, this colloquy between the prosecutor and W.M. indicates otherwise:

Q: Okay. So, do you know what telling the truth means?
A. Yes.
Q: What does it mean?
A. Like I broke something and ....
Q: Like you broke something and what?
A. .... (Pause). Like I broke something and mom says, "Who did this?" And I did it.

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Cite This Page — Counsel Stack

Bluebook (online)
760 N.E.2d 203, 2001 Ind. App. LEXIS 2225, 2001 WL 1671446, Counsel Stack Legal Research, https://law.counselstack.com/opinion/haycraft-v-state-indctapp-2001.