Tinkham v. State

787 N.E.2d 440, 2003 Ind. App. LEXIS 746, 2003 WL 1986652
CourtIndiana Court of Appeals
DecidedApril 30, 2003
DocketNo. 01A04-0206-CR-255
StatusPublished
Cited by1 cases

This text of 787 N.E.2d 440 (Tinkham 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
Tinkham v. State, 787 N.E.2d 440, 2003 Ind. App. LEXIS 746, 2003 WL 1986652 (Ind. Ct. App. 2003).

Opinion

OPINION

BARNES, Judge.

Case Summary

David Tinkham appeals his convictions for child molesting as a Class A felony and child molesting as a Class C felony, We reverse.

Issues

The dispositive issue is whether the trial court committed reversible error when instructing the jury. For purposes of retrial, we also address whether the trial court erred in admitting into evidence certain statements made by Tinkham's wife.

Facts

The evidence most favorable to the convictions reveals that during the summer of 2001, M.B., who was born in 1992, was living with Tinkham and his wife, Kim. The Tinkahms were M.B.'s legal guardians and she had been living with the Tinkhams for several years.1 MB. called the Tinkhams "mom" and "dad."

In July 2001, M.B. indicated to her childeare provider that Tinkham had been molesting her. The childeare provider reported what M.B. had told her to the local Office of Family and Children and an investigation ensued. At some point during the investigation, M.B. told police that she had lied about the molestation, but later indicated she had recanted only after either her sister or Kim Tinkham had pressured her to so that Tinkham would not have to go to jail. MB. testified that Tinkham at various times had licked her [442]*442"crotch," touched her "boobs," and forced her to "suck his dick and feel his balls." Tr. p. 885.

At trial, Tinkham argued that M.B. had lied about the molestation because she wanted to go live with Tinkham's daughter. He also presented evidence that M.B. had been present when Tinkham's and Kim's other children had engaged in explicit sexual talk, had walked in on Tink-ham's son having sex with his girlfriend, and had watched sexually explicit R-rated movies when the Tinkhams were not home. The State also presented evidence that when Kim first encountered a case manager for the Office of Family and Children who was investigating M.B.'s allegations, she said, "I'm not going to throw away 19 years of marriage, you're] not going to make me testify against my husband ... just take her [M.B.], she's not my f ... ing kid anyway." Tr. p. 880. The trial court instructed the jury, over objection, "You may convict the Defendant upon the uncorroborated testimony of a witness." App. p. 188. On February 27, 2002, a jury found Tinkham guilty as charged of one count of child molesting as a Class A felony and one count of child molesting as a Class C felony. After sentencing, Tink-ham now appeals.

Analysis

I. Jury Instruction

Tinkham challenges the trial court's instruction to the jury that it could convict Tinkham "upon the uncorroborated testimony of a witness." App. p. 188. We review the grant of a jury instruction for abuse of discretion. Hubbard v. State, 742 N.E.2d 919, 921 (Ind.2001), cert. denied, 534 U.S. 869, 122 S.Ct. 160, 151 L.Ed.2d 109. An improper instruction will merit reversal only if it "so affects the entire charge that the jury was misled as to the law in the case." Id. (quoting White v. State, 547 N.E.2d 831, 835 (Ind.1989)). In reviewing a challenge to a jury instruction, we consider whether the instruction correctly states the law, whether there was evidence in the record to support the giving of the instruction, and whether the substance of the tendered instruction is covered by other instructions. Id.

While this case was in the process of being fully briefed, our supreme court issued its decision in Ludy v. State, 784 N.E.2d 459 (Ind.2003). In that case, the court disapproved of a jury instruction stating, "A conviction may be based solely on the uncorroborated testimony of the alleged victim if such testimony establishes each element of any crime charged beyond a reasonable doubt." Id. at 460. In so doing, the court overruled a long line of cases that had approved similar jury instructions. Id. at 462 n. 2. The court identified three difficulties with the instruction:

First, it unfairly focuses the jury's attention on and highlights a single witness's testimony. Second, it presents a concept used in appellate review that is irrelevant to a jury's function as a fact-finder. Third, by using the technical term "uncorroborated," the instruction may mislead or confuse the jury.

Id. at 461. Nevertheless, the court found the giving of the instruction to be harmless error, because the testimony of the alleged victim was, in fact, corroborated, and there was substantial probative evidence of the defendant's guilt aside from the victim's testimony. Id. at 463.

It is true that the instruction given in this case is not identical to the one given in Ludy. Most notably, it refers to the uncorroborated testimony of a "witness" instead of the arguably more inflammatory "alleged victim." This is not, however, a sufficient basis to distinguish the instruction given to Tinkham's jury. We observe [443]*443that when Justice Dickson dissented from the denial of transfer in Carie v. State, he indicated that one of the reasons he disapproved of the instruction at issue in that case was because it referred to "the vice-tim" and thus "implie[d] to the jury that the trial judge accepts as truthful the complaining witness's contentions regarding the alleged incident." 761 N.E.2d 385, 385 (Ind.2002) (Dickson, J., dissenting from denial of transfer). In Ludy, however, Justice Dickson made no mention of, and thus placed no importance on, the fact that the instruction referred to the "alleged victim" in disapproving of the instruction. The harm comes in emphasizing the testimony of one witness, regardless of how he or she is referred to. The instruction in this case suffers from this problem: there was only one witness, M.B., whose uncorroborated testimony could support Tinkham's conviction. Additionally, the Ludy opinion overruled Burnett v. State, 736 N.E.2d 259, 261 (Ind.2000), a case where, similar to this case, the jury instruction referred to the uncorroborated testimony of an "eyewitness," not a "vietim" or "alleged victim."

The State also contends that any error in the challenged instruction was effectively cured by the instruction immediately following it, which stated in pertinent part:

The testimony of a witness, if believed, beyond a reasonable doubt, may be sufficient to sustain a conviction; however, the testimony of a witness is not to be singled out from other evidence and is to be considered by you, in determining whether or not each element of the crime charged against the Defendant has been proven, by the State of Indiana, beyond a reasonable doubt.

App. p. 189. The State argues that the second phrase of the instruction sufficient ly advises the jury not to place undue weight on one witness's testimony. We note, however, that the first phrase essentially repeats the erroneous instruction. Additionally, the second phrase is rendered confusing and unclear when, after advising the jury not to single out one witness's testimony, it goes on to provide that such testimony "is" to be considered by the jury, which would seem to require the jury to consider it, thus emphasizing that witness's testimony once again.

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Bluebook (online)
787 N.E.2d 440, 2003 Ind. App. LEXIS 746, 2003 WL 1986652, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tinkham-v-state-indctapp-2003.