Hill v. State

470 N.E.2d 1332, 1984 Ind. LEXIS 1037
Indiana Supreme Court·Decided November 28, 1984·No. 1280S435·Published·Cited by 18 cases

Opinion

PIVARNIK, Justice.

On August 11, 1980, Defendant-Appellant John C. Hill was convicted of, child molesting, a class B felony, by a jury in the Marion Superior Court. On September 2, 1980, the Honorable Jay B. Haggerty sentenced Appellant to fifteen years in the Indiana Department of Corrections. Appellant now appeals this judgment and raises the following three issues:

1. insufficient evidence of identification of Appellant;

2. error by the trial court in admitting statements of the appellant; and

8. error by the trial court in admitting opinion evidence.

On January 28, 1980, eleven year old S.W. received a phone call from her estranged stepfather, Appellant John Hill Appellant asked S.W., the victim, to walk to his house for lunch the next day and to bring her younger brother. S.W. went to school the next day, January 29, 1980, and called Appellant around 11:50 a.m. Appellant again asked S.W. to walk to his house. S.W. walked to Appellant's house, arriving around 12:20 p.m. Appellant met S.W. at the door in his undershorts. He requested a kiss, but S.W. declined. Appellant told the victim there was cereal on the kitchen table for her to eat. She proceeded to the kitchen and had finished eating when Appellant entered to tell her he had a surprise for her in the bedroom. S.W. went to Appellant's bedroom, sat on the edge of the bed, and watched television. She heard Appellant running bathwater. Then he returned to the bedroom and requested S.W. dry him off with a towel, but she refused. Appellant then told the victim to come to him. As she did so he attempted to pull her pants down three times but she resisted. Appellant then held her hands over her head and pulled her pants off. He pulled her underpants down to her ankles, and pulled down his pants and undershorts. As he started to rub against the victim, she asked him to stop. He responded that he had something that would make it not hurt bad and applied some "white stuff" to S.W. and himself. Appellant then inserted his penis into the victim's vagina. S.W. looked down and saw "a puddle of clear stuff" on her legs. Just then Appellant handed her a towel and told her to wipe herself, She then went into the bathroom, dressed, and went in the kitchen. Appellant told her they would both get in trouble if she told anyone about the incident, and he further promised to buy her a bike and three or four pairs of pants if she didn't tell anyone. Appellant returned S.W. to her school around 3:00 p.m. S.W. and Appellant had been alone in Appellant's house throughout S.W.'s visit.

Later that evening S.W. told her mother what had happened. S.W.'s mother called the police who came and took statements. Then S.W. was taken to Methodist Hospital and was examined. The examination revealed a small scratch at the posterior por *1335 tion of the entrance to the vagina. It also showed the hymenal ring not intact. The area around the entrance to the vagina was reddened. No tests for sperm were made at this time, however, a tube of vaginal washings taken at this time was tested by an Indianapolis Police Department serologist. A microscopic search made by the serologist for the detection of sperm was found to be positive. This indicated the victim had had intercourse within the past twenty-four to thirty-six hours.

I

Appellant first asserts the State failed to have S.W. identify the appellant at trial as being the perpetrator of the offense. Accordingly, Appellant argues, the verdict is not supported by the evidence and must be reversed.

When the Court is confronted with a challenge to the sufficiency of the evidence, it neither weighs evidence nor judges credibility; rather, the Court examines only the circumstantial and direct evidence most favorable to the State, together with all reasonable inferences which can be drawn therefrom. If there is evidence of probative value to support the conclusion of the jury in the trial court, the conviction will not be overturned. Smith v. State, (1984) Ind., 465 N.E.2d 1105, 1124, reh. denied; Napier v. State, (1983) Ind., 445 N.E.2d 1361, reh. denied.

S.-W. did not point to Appellant at trial and say, "'That is the man." However, it is well settled that a defendant may be identified by name. Rogers v. State, (1979) 272 Ind. 65, 396 N.E.2d 348. Appellant John Hill was present at trial. S.W. testified she knew the defendant. John Hill and he was her stepfather. She further testified that John Hill came to the door of his house in his undershorts and that no one else was in the house except John Hill and herself. The vietim then related the molestation incident. It is clear from this testimony Appellant was the same John Hill who molested S.W. Therefore, the evidence of identity was sufficient to show Appellant and the perpetrator of the crime were one and the same man. No error has been shown on this issue.

II

Appellant next contends the State failed to show a knowing and intelligent waiver of constitutional rights before statements made by Appellant were admitted at trial. He argues the trial court consequently erred by admitting these statements. We do not agree.

On February 2, 1980, Appellant was arrested and advised of the charges against him along with his rights. Appellant signed the Miranda rights on the back of the arrest slip. While riding downtown with Officer Hogan Black, Appellant stated he wished to talk with Officer Black. Officer Black did not initiate the conversation with Appellant. Appellant asked about the molestation charge and when told what a molestation was, stated he just touched the victim but did not rape her. This statement was subsequently admitted at trial. Appellant now contends there was no showing he waived his right to remain silent or that his statement was voluntarily given.

The State contends it was not error to allow Appellant's statement into evidence because it was volunteered. The record shows Officer Black did not question Appellant during the ride nor did he make statements to induce Appellant to make this declaration. The requirements of Miranda do not apply beyond coercive custodial interrogation. Resnover v. State, (1984) Ind., 460 N.E.2d 922, 932, reh. denied; Partlow v. State, (1983) Ind., 453 N.E.2d 259 cert. denied (1984) - U.S. -, 104 S.Ct. 983, 79 L.Ed.2d 219. Any statement made freely, voluntarily, and without any compelling influence is admissible evidence. Rhode Island v. Innis, (1980) 446 U.S. 291, 100 S.Ct. 1682, 1692, 64 L.Ed.2d 297; Roberts v. United States, (1980) 445 U.S. 552, 100 S.Ct. 1358, 63 L.Ed.2d 622. Appellant's statement was uncoerced. We therefore find no violation of Appellant's rights and that the trial *1336 court properly admitted Officer Black's testimony.

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Hill v. State, 470 N.E.2d 1332, 1984 Ind. LEXIS 1037 (Ind. 1984).

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