Pendergrass v. State

889 N.E.2d 861, 2008 Ind. App. LEXIS 1406, 2008 WL 2654332
CourtIndiana Court of Appeals
DecidedJuly 8, 2008
Docket71A03-0712-CR-588
StatusPublished
Cited by4 cases

This text of 889 N.E.2d 861 (Pendergrass 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
Pendergrass v. State, 889 N.E.2d 861, 2008 Ind. App. LEXIS 1406, 2008 WL 2654332 (Ind. Ct. App. 2008).

Opinions

OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant-Defendant, Richard Pender-grass (Pendergrass), appeals his conviction for two Counts of child molesting, Class A felonies, Ind.Code § 35-42-4-3.

Affirmed.

ISSUES

Pendergrass raises two issues on appeal, which we restate as follows:

(1) Whether the trial court abused its discretion by admitting several exhibits and related testimony concerning deoxyribonucleic acid (DNA) test results without the testimony of the laboratory technician who performed the actual testing; and
(2) Whether Pendergrass’ confrontational rights pursuant to the Sixth Amendment of the United States Constitution were violated when he was denied the opportunity to confront and cross-examine the laboratory technician who performed the DNA analysis.

FACTS AND PROCEDURAL HISTORY

C.P., born on June 8, 1989, is the daughter of D.W. (Mother) and Pendergrass. C.P.’s parents divorced when she was approximately one and one half years old. Originally, C.P. and her siblings lived with [863]*863their Mother; however, when C.P. was eleven years of age, the children moved in with Pendergrass and his extended family in a residence located in South Bend, Indiana. Pendergrass, C.P., and her younger sister, J.P., shared a downstairs bedroom. Pendergrass slept in a bed, while the girls slept on blankets on the floor.

C.P. was eleven years old when Pender-grass started to touch her inappropriately. The first time it happened, C.P. was asleep and Pendergrass touched her vagina while she was clothed. She woke up and told him to stop. Pendergrass complied. After that time, Pendergrass gave C.P. pills every night which C.P. believed to be sleeping pills. According to C.P.’s sister, the drugs Pendergrass gave to C.P. were red pills that left C.P. acting “dumb, like dumbfounded” or “slow” mentally. (Transcript p. 277). Pendergrass also gave J.P. cold medicine, such as Nyquil. Even though the pills Pendergrass gave her would usually make her “black out,” at times, she would wake up. (Tr. p. 76). C.P. remembered Pendergrass sitting next to her on the floor and touching her vagina under her clothes, sometimes inserting his fingers into her vagina. Whenever he put his fingers inside of her vagina, it made her feel “dirty.” (Tr. p. 73-74). On several occasions, he would also kiss her by putting his tongue in her mouth. There were times that C.P. woke up in Pender-grass’ bed, with her clothes off and Pen-dergrass on top of her. Although C.P. had no recollection of feeling anything, after-wards, she would notice an abnormal discharge in her underwear.

When she was thirteen, C.P. began feeling ill and Pendergrass took her to see a doctor. Given her symptoms, the doctor asked C.P. for a urine sample. Following the results of the urine sample, the doctor informed C.P. and Pendergrass that she was pregnant. On Mother’s Day, May 11, 2003, C.P. informed her Mother that she was pregnant and that Pendergrass was the father of her unborn child. Mother notified the St. Joseph County Police Department, specifically speaking to Detective Steven Metcalf (Detective Metcalf).

As a result of the police report, Metcalf investigated Pendergrass. In June of 2003, C.P., accompanied by her Mother, had an abortion. Following C.P.’s abortion, Detective Metcalf took possession of the fetus for DNA testing. He also collected a buccal swab from C.P. and a blood sample from Pendergrass for DNA testing. All the evidence was tagged and properly stored in the freezer located at the St. Joseph County Police Post. Although Detective Metcalf “firmly believed that [he] had sent these items to the [Indiana State Police Laboratory],” he never actually did so. (Tr. p. 308). It was not until May of 2006 that Detective Met-calf discovered his omission and the evi- ■ dence was sent to the Indiana State Police Laboratory for DNA testing. After testing, it was determined that given the paternity index results, there was a 99.9999 percent likelihood that Pendergrass was the father of the fetus aborted by C.P.

On June 11, 2006, the State filed an Information, charging Pendergrass with two Counts of child molesting, Class A felonies, Ind.Code § 35-42-4-3. On October 1, 2007, a jury trial commenced. During the trial, the trial court admitted, over the objection of defense counsel, three exhibits concerning the DNA testing and testimony related thereto. Four days later, on October 5, 2007, the jury found Pendergrass guilty as charged. On November 1, 2007, at the sentencing hearing, the trial court sentenced Pendergrass to forty years incarceration on Count I and twenty-five years incarceration on Count II, with sentences to run consecutively.

[864]*864Pendergrass now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Admission of Evidence

Initially, Pendergrass contends that the trial court abused its discretion when it admitted, over his objection, the test results from the DNA analysis performed by the Indiana State Police Laboratory and testimony related thereto. We review a trial court’s decision to admit or exclude evidence for an abuse of discretion. Sullivan Builders & Design, Inc. v. Home Lumber of New Haven, Inc., 834 N.E.2d 129, 133 (Ind.Ct.App.2005), reh’g denied, trans. denied. An abuse of discretion occurs if a trial court’s decision is clearly against the logic and effect of the facts and circumstances before the court. Id. Moreover we will not reverse the trial court’s admission of evidence absent a showing of prejudice. Id.

Specifically, Pendergrass contests the admission of three particular exhibits, i.e., State’s Exhibits 1, 2, and 3. State’s Exhibit 1 is a Certificate of Analysis, prepared by forensic biologist, Daun C. Powers (Powers), employed by the Indiana State Police Laboratory. The Exhibit reflects the results of Powers’ DNA extraction from a tissue sample from the arm of the fetus, the buccal swab taken from C.P., and Pen-dergrass’ blood sample. State’s Exhibit 2, also prepared by Powers, contains the development of Pendergrass’, C.P.’s, and the fetus’ “Profiles for Paternity Analysis.” (Appellant’s App. p. 2). The Exhibit provides the information necessary to establish paternity between the individuals, if any. This information was subsequently submitted to Dr. Michael Conneally, M.D. (Dr. Conneally), a retired professor of human genetics, human genetic disorders and DNA at Indiana University Medical Center in Indianapolis. State’s Exhibit 3 is the Paternity Index, as prepared by Dr. Conneally, which establishes a 99.9999% probability of Pendergrass being the fetus’ biological father.

Pendergrass’ overarching claim with regard to all three exhibits focuses on the purported hearsay statements contained within each document.

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Related

Pendergrass v. State
913 N.E.2d 703 (Indiana Supreme Court, 2009)
Jackson v. State
891 N.E.2d 657 (Indiana Court of Appeals, 2008)
Pendergrass v. State
889 N.E.2d 861 (Indiana Court of Appeals, 2008)

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889 N.E.2d 861, 2008 Ind. App. LEXIS 1406, 2008 WL 2654332, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pendergrass-v-state-indctapp-2008.