Palmer v. State

640 N.E.2d 415, 1994 Ind. App. LEXIS 1332, 1994 WL 521948
CourtIndiana Court of Appeals
DecidedSeptember 20, 1994
Docket41A04-9404-CR-140
StatusPublished
Cited by19 cases

This text of 640 N.E.2d 415 (Palmer 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
Palmer v. State, 640 N.E.2d 415, 1994 Ind. App. LEXIS 1332, 1994 WL 521948 (Ind. Ct. App. 1994).

Opinion

RILEY, Judge.

STATEMENT OF THE CASE

Defendant-Appellant Melvin Jean Palmer (Palmer) appeals from his conviction of child molesting. We affirm.

ISSUES

Palmer presents three issues for our review which we restate as follows:

1. Whether the trial court erred when it denied Palmer’s motion for a mistrial.
2. Whether the trial court erred when it permitted the State to present rebuttal witnesses.
3. Whether the tidal court committed fundamental error by permitting various defense character witnesses to testify on cross-examination regarding Palmer’s specific acts of prior misconduct.

FACTS AND PROCEDURAL HISTORY

In December, 1991, Palmer took his three grandchildren 1 to the Aldi Grocery Store in New Whiteland, Indiana. After shopping, he took the then 5½ year old victim C.P. into the bathroom and locked the door. The other children were waiting in the hallway. Palmer instructed C.P. to bend over and pull down his pants and proceeded to sodomize him. Palmer told C.P. that if he told anyone about what happened, he would beat him up. (R. 229). Despite Palmer’s threats, C.P. told his grandmother the following night.

On January 14, 1992, Palmer was charged by information with child molesting, a class B felony. 2 Palmer was found guilty by a jury and sentenced to 10 years incarceration.

DISCUSSION AND DECISION

I. Mistrial/Order in Limine

Palmer contends that the trial court erred when it denied his motion for a mistrial. Palmer moved for a mistrial after a State’s witness testified regarding a topic excluded in a pre-trial order in limine. Palmer filed a pre-trial motion in limine seeking to exclude evidence of his involvement in other possible molestations with T.P. and Z.P., C.P.’s sister and brother. Palmer filed an amended motion in limine seeking to further exclude any evidence of unrelated incidents of molestation involving the victim, C.P. Palmer relied on Lannan v. State (1992), Ind., 600 N.E.2d 1334, in support of his motion. The trial court denied Palmer’s motion “in regard to any testimony or reference to an act of misconduct which was part of the res gestae of the crime charged.” (R. 84). However, the court granted the motion as to all other issues. Thus, with regard to prior unrelated incidents of molest of C.P., the motion in limine was granted.

Further, outside the presence of the jury and prior to the evidentiary portion of the trial, the court heard testimony by C.P., the victim, and heard additional argument on defense’s motion in limine. C.P., then 7 years old, testified that Palmer took him into the bathroom at Aldi’s and sodomized him. He further testified that Palmer then brought his little brother, Z.P. then age 3, into the bathroom and told him to “[ljean over and pull down his pants.” C.P. testified that his dad “done the same thing [to Z.P.] that he done to me.... he stuck his penis in our butts.” (R. 201). The court ruled from the bench that it would allow testimony in regard to the alleged incident with Palmer and Z.P. because it took place immediately after the incident with C.P. and was therefore part of the res gestae. The court then said that the portion of the motion in limine regarding prior bad acts remained in effect.

Dr. Roberta Hibbert, a pediatrician specializing in the area of child sexual abuse, *419 evaluated C.P. in the child sexual abuse clinic at Wishard Hospital in January, 1992. C.P. was referred to the clinic for a medical evaluation for alleged sexual abuse. On direct examination, Dr. Hibbert testified that her physical examination of C.P. revealed indications consistent with the allegation of sexual abuse. During cross-examination of Dr. Hib-bert, defense counsel asked her approximately when this incident of molest took place. Dr. Hibbert testified “[t]he allegations as we understood them, — was that they had been occurring for approximately two years.” (R. 293). Palmer moved for a mistrial arguing that this testimony was in violation of the in limine ruling excluding any evidence of unrelated prior acts of molest concerning C.P.

Dr. Hibbert had not been advised of the existence of the court’s in limine ruling. The trial court found that the order in limine had been violated, but that it did not merit a mistrial. The court denied the mistrial and admonished the jury as follows:

[Ljadies and gentlemen, before the break there was a question asked of the doctor, “do you know by reviewing your report approximately when this incident took place”, and the — the response to that was not a proper answer and I am ordering it stricken from the record and you should disregard that answer to that question if in fact you do remember it....

(R. 322).

The trial court has wide discretion in determining whether to grant a mistrial, and its decision is afforded great deference on appeal because the trial court is in the best position to gauge the surrounding circumstances of the event and its impact on the jury. Reynolds v. State (1993), Ind.App., 625 N.E.2d 1319, 1321, trans. denied. To prevail on appeal, appellant must show that he was so prejudiced that he was placed in a position of grave peril to which he should not have been subjected. Id. We will not reverse a trial court’s ruling on a motion for mistrial absent an abuse of discretion. Wright v. State (1992), Ind., 593 N.E.2d 1192, 1196, cert. denied Wright v. Indiana, — U.S. -, 113 S.Ct. 605, 121 L.Ed.2d 540 (1992).

Palmer correctly states the prevailing rule in Indiana regarding the admissibility of pri- or uncharged misconduct of the accused. The Indiana supreme court adopted Federal Rule of Evidence 404(b) in Lannan v. State, 600 N.E.2d 1334. Evid.R. 404(b) provides in pertinent part as follows:

(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident....

We do not find that Palmer was placed in a position of grave peril due to this testimony. In determining the gravity of the peril, we look to “the probable persuasive effect on the jury’s decision.” James v. State (1993), Ind., 613 N.E.2d 15, 22. The trial court judge articulated on the record that based on his observation of the jury as Dr.

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Bluebook (online)
640 N.E.2d 415, 1994 Ind. App. LEXIS 1332, 1994 WL 521948, Counsel Stack Legal Research, https://law.counselstack.com/opinion/palmer-v-state-indctapp-1994.