Mahoney v. State

388 N.E.2d 591, 180 Ind. App. 358
CourtIndiana Court of Appeals
DecidedApril 26, 1979
Docket3-378A65
StatusPublished
Cited by7 cases

This text of 388 N.E.2d 591 (Mahoney 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
Mahoney v. State, 388 N.E.2d 591, 180 Ind. App. 358 (Ind. Ct. App. 1979).

Opinions

STATON, Judge.

Patrick Mahoney was convicted by jury of the crime of incest1 with his stepdaughter, C. He was sentenced to a prison term of two to twenty-one years.

On appeal, Mahoney contends that numerous errors were committed at his trial. We find no error and we affirm.

L.

Voir Dire of Jurors

During voir dire examination the State asked prospective jurors how old their children were. Mahoney's objection to this line of questioning was overruled.

[593]*593On appeal Mahoney claims the State used the questioning to influence the jurors to hear the inflammatory evidence of C.'s age at the time of the incestuous act and to locate jurors who would be biased against Mahoney. Mahoney claims the trial court erred when it failed to terminate such questioning.

The trial court has broad discretion in conducting the form and substance of voir dire examination. Roberts v. State (1978), Ind., 373 N.E.2d 1103; Tewell v. State (1976), 264 Ind. 88, 339 N.E.2d 792. The decision of the trial court to permit a particular line of questioning will be examined only for an abuse of such discretion.

Mahoney fails to show any specific harm to his defense that resulted from the State's questioning of prospective jurors. He fails to allege that the jury as constituted was biased against him as a result of such questioning. Finally, he fails to show that any juror was challenged or excused as a result of his or her answers to the State's line of questioning. Wheeler v. State (1970), 255 Ind. 395, 264 N.E.2d 600. Mahoney has failed to show that the trial court abused its discretion in permitting the State to inquire about the ages of prospective jurors' children.

IL

Evidence of Pregnancy and Birth

At trial C. and Mrs. Sally Mahoney were permitted to testify to physical changes in C.'s physical condition followed by the birth of a child on August 29, 1975. Mahoney argues that the trial court erred in admitting prejudicial evidence of a pregnancy which had no probative value with respect to the act of incest with which he was charged.

The pregnancy testified to clearly did not result from the act of intercourse occurring in April 1975. However, Indiana courts allow the admission of evidence of prior incestuous acts in a prosecution for incest. Woods v. State (1968), 250 Ind. 132, 285 N.E.2d 479; see discussion infra, at Part III. C. testified to acts of sexual intercourse with Mahoney beginning in December 1974. The period of gestation for a child is such that a child born on August 29, 1975, could have been conceived in December 1974. Therefore, the evidence of the pregnancy was relevant to show that Maho-ney had had sexual intercourse with C. over a period of time, culminating in the charged act of April 1975.

The trial court was entitled to exercise its discretion in weighing the probative value of the evidence against any prejudice resulting to the defense. Boles v. State (1975), 163 Ind.App. 196, 322 N.E.2d 722. We are unable to conclude that the trial court abused its discretion in admitting the evidence.

IIL

Other Sexual Acts

At trial C. was permitted to testify to other sexual episodes with Mahoney which occurred prior to April 1975. In the State's rebuttal to Mahoney's testimony, a sister, M., was permitted to testify to sexual advances by Mahoney which had occurred a year or two earlier. On appeal Mahoney claims that the trial court erred in admitting C.'s and M.'s testimony of other sexual episodes. He makes a cogent argument on behalf of his stance.

It is true that evidence of prior offenses committed by the accused is generally inadmissible. However, Indiana courts have recognized certain exceptions to this rule. The general rule does not apply when evidence of prior similar offenses is offered to show the accused's "depraved sexual instinct." Merry v. State (1975), Ind.App., 335 N.E.2d 249; Kerlin v. State (1970), 255 Ind. 420, 265 N.E.2d 22; Lamar v. State (1964), 245 Ind. 104, 195 N.E.2d 98. Evidence of such prior acts may be introduced, even in the absence of a conviction. Bowen v. State (1975), 263 Ind. 558, 334 N.E.2d 691.

Long-standing Indiana case law allows the admission of evidence of prior similar acts in a prosecution for incest. See Woods v. State, supra, 250 Ind. 132, 235 N.E.2d 479. Thus C. was permitted to testify to prior [594]*594occasions on which Mahoney had had sexual intercourse with her.

Indiana courts have held that evidence of merely similar sexual offenses may be admitted at trial. These similar offenses may have been committed with witnesses other than the prosecuting witness Merry v. State, supra, 885 N.E.2d 249. Thus, M., another of Mahoney's stepdaughters, was permitted to testify to sexual advances Ma-honey made toward her on a prior occasion. See Merry v. State, supra; Woods v. State, supra.

The trial court followed the settled law in Indiana when it permitted evidence of Ma-honey's prior sexual episodes with C. and M.

IV.

Photograph

Mahoney claims error in the trial court's admission of a photograph of C. which was taken in the fall of 1974, three years before trial. Mahoney argues that the photograph could not be admitted to prove any material issue; age of the prosecuting witness, for instance, is not at issue in an incest prosecution.

The admission of the photograph was within the discretion of the trial court. Wilson v. State (1978), Ind., 374 N.E.2d 45. In admitting the photograph of C., the trial court indicated that C.'s age and appearance were relevant to the jury's determination of which of two disparate statutory sentences to impose. We cannot conclude that the trial court abused its discretion in so ruling. The appearance of the complaining witness at the time of the offense may often be completely irrelevant at trial. However, in a case such as this one, in which C.'s appearance at sixteen had changed greatly during the three years between the time of the offense and the trial, a photograph of C. may have aided the jury in formulating a more accurate reconstruction of the offense.

v.

Marital Privilege

In his brief, Mahoney argues that the trial court erred in permitting Mahoney's wife, Mrs. Sally Mahoney, to testify to matters within the marital privilege, in violation of IC 1971, 34-1-14-5, Ind.Ann.Stat. § 2-1714 (Burns Code Ed.). Mahoney objects to two specific exchanges:

"Q. How would you describe the emotional state of Mr. Mahoney in latter part of 1974?" [Objection made and ruled on.]
* * * * * #
"A.

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Mahoney v. State
388 N.E.2d 591 (Indiana Court of Appeals, 1979)

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Bluebook (online)
388 N.E.2d 591, 180 Ind. App. 358, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mahoney-v-state-indctapp-1979.