Stevens v. State

580 N.E.2d 274, 1991 Ind. App. LEXIS 1781, 1991 WL 216096
CourtIndiana Court of Appeals
DecidedOctober 28, 1991
DocketNo. 50A04-9105-CR-165
StatusPublished

This text of 580 N.E.2d 274 (Stevens 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
Stevens v. State, 580 N.E.2d 274, 1991 Ind. App. LEXIS 1781, 1991 WL 216096 (Ind. Ct. App. 1991).

Opinion

STATON, Judge.

James Stevens appeals his convictions for Class C felony child molesting,2 Class D felony child molesting,3 and attempted child molesting,4 a Class B felony. Stevens raises three issues for our review. Restated, they are:

I. Whether the conviction for attempted child molesting is supported by sufficient evidence.
II. Whether the trial court erroneously denied Stevens' motion to sever the offenses for separate trials.
III. Whether Stevens was denied effective assistance of trial counsel.

We affirm.

The evidence favorable to the State indicates that in August or September of 1989, S$.G., the victim, accompanied by her mother and younger sister, encountered Stevens and his son at the truckstop where S.G.'s mother worked. S.G. and her family knew Stevens, and they stopped to talk with him. While they were talking, Stevens mentioned that he would pay S.G. and her sister to help him tidy up his mobile home. S.G.'s mother allowed her daughters to go with Stevens in his car because she needed to remain to pick up her paycheck (the children wanted to go with Stevens, a security guard, because he owned a vehicle resembling a police cruiser). S.G.'s sister sat in back with Stevens' son, and S.G. sat next to Stevens after he moved a radio located in the center of the front seat. On the way to the trailer, Stevens touched S.G. between her legs.

8.G.'s mother arrived at the mobile home soon after Stevens and began helping her daughters clean the trailer. When Stevens mentioned that he needed to buy some cat food, S.G.'s mother offered to go to a nearby convenience store to purchase some. While she was gone, Stevens asked S.G. to accompany him to the bathroom. S.G. complied, thinking that the bathroom needed cleaning. When she entered the bathroom, Stevens closed the door and urinated in front of S.G. He then pulled S.G.'s pants and underwear down, and "pushed" his penis against her. Stevens then heard S.G.'s mother returning, pulled up his pants, and returned to the living room.

Another witness, K.B. testified to an earlier, unrelated incident where she was baby-sitting for Stevens' ex-wife. On this occasion, Stevens was alone with K.B. when he entered the room in which she was baby-sitting, clad only in a towel. He be[276]*276gan tickling her, and then attempted to insert his hand up the leg of her shorts. When she went into another room, Stevens followed her, began tickling her again, and tried to unfasten her shorts. He was able to insert his fingers in her shorts, but his assault was interrupted by the cries of the baby and K.B.'s struggles.

Stevens first contends the evidence is not sufficient to support his conviction for attempted child molesting. In reviewing the sufficiency of the evidence, we do not weigh the evidence or judge the credibility of witnesses. We are constrained to consider only the evidence most favorable to the State, together with all reasonable and logical inferences to be drawn therefrom. Clark v. State (1990), Ind., 562 N.E.2d 11, 16. The verdict will not be overturned if there is substantial evidence of probative value to support the conclusion of the fact-finder. Id.

The relevant provision of the child molesting statute provides:

(a) A person who, with a child under twelve (12) years of age, performs or submits to sexual intercourse or deviate sexual conduct commits child molesting, a Class B felony.

IC 35-42-4-8.

Indiana's attempt statute reads, in pertinent part:

(a) A person attempts to commit a crime when, acting with the culpability required for commission of the crime, he engages in conduct that constitutes a substantial step toward commission of the crime.

IC 85-41-5-1.

Stevens argues S.G.'s equivocal testimony does not prove his intent to engage in sexual intercourse. However, S.G. was unequivocal in her description of how Stevens exposed his genitals, pulled her pants down to expose her genitals, and in how he "pushed" his penis against her "erotch."" Record, pp. 423-24. Because the element of intent requires an examination of the actor's subjective mental state, the trier of fact must resort to reasonable inferences drawn from an examination of the surrounding cireumstances in order to determine the existence of intent. Markoff v. State (1990), Ind.App., 553 N.E.2d 194. Considering S.G.'s testimony, along with the evidence that Stevens waited until S.G.'s mother had left, that he closed the bathroom door after she entered, that he urinated in her presence, and that he halted his actions when he heard S.G.'s mother returning, we conclude that Stevens engaged in conduct amounting to a substantial step toward the commission of child molesting. His conviction for attempted child molesting is supported by substantial evidence of probative value.

Stevens next argues that the trial court erred by failing to grant his motion for severance of offenses as provided by IC 35-34-1-11(a). This section, in pertinent part, states:

Whenever two (2) or more offenses have been joined for trial in the same indictment or information solely on the ground that they are of the same or similar character, the defendant shall have a right to a severance of the offenses.

Id. Thus, IC 35-34-1-11(a) provides the defendant with the absolute right to have the counts tried separately, and a trial court has no discretion to deny a severance motion under these circumstances. See Hodges v. State (1988), Ind., 524 N.E.2d 774. However, a defendant waives his right to have similar offenses tried separately where he fails to make a timely motion for severance. Id.; Hobson v. State (1986), Ind.App., 495 N.E.2d 741. When the trial court denies a pre-trial motion for severance of offenses, the motion may be renewed on the same grounds before or at the close of all the evidence during trial, and failure to renew the motion results in a waiver of the right. IC 35-34-1-12(b). Although Stevens made a pre-trial motion for severance, he failed to renew his motion during trial. His failure to do so results in waiver of his right to have the offenses tried separately. See Hobson, supra, at 744.

Finally, Stevens contends that he was denied effective assistance of counsel. Our [277]*277supreme court succinetly expressed the standard for reviewing such claims in Burr v. State (1986), Ind., 492 N.E.2d 306, where the court opined:

Claims of ineffective assistance of counsel are judged under a standard which asks whether a defendant received "reasonably effective assistance." Judicial scrutiny of counsel's performance is highly deferential and should not be exercised through the distortions of hindsight. Isolated poor strategy, experience, or bad tactics do not necessarily amount to ineffectiveness of counsel. Counsel is presumed competent, and appellant must present strong and convine-ing evidence to rebut the presumption. Strickland v. Washington (1984), 466 U.S. 668

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Related

Strickland v. Washington
466 U.S. 668 (Supreme Court, 1984)
Schiro v. Indiana
493 U.S. 910 (Supreme Court, 1989)
Hobson v. State
495 N.E.2d 741 (Indiana Court of Appeals, 1986)
Hodges v. State
524 N.E.2d 774 (Indiana Supreme Court, 1988)
Burr v. State
492 N.E.2d 306 (Indiana Supreme Court, 1986)
Schiro v. State
533 N.E.2d 1201 (Indiana Supreme Court, 1989)
Sulie v. State
522 N.E.2d 380 (Indiana Supreme Court, 1988)
Clark v. State
562 N.E.2d 11 (Indiana Supreme Court, 1990)
Markoff v. State
553 N.E.2d 194 (Indiana Court of Appeals, 1990)

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Bluebook (online)
580 N.E.2d 274, 1991 Ind. App. LEXIS 1781, 1991 WL 216096, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stevens-v-state-indctapp-1991.