Timothy L. Hyser v. State of Indiana ( 2013 )

Oct 17 2013, 5:29 am
FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MARIELENA DUERRING GREGORY F. ZOELLER
South Bend, Indiana Attorney General of Indiana
GEORGE P. SHERMAN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
TIMOTHY L. HYSER, )
)
Appellant-Defendant, )
)
vs. ) No. 20A05-1301-CR-37
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ELKHART SUPERIOR COURT
The Honorable George W. Biddlecome, Judge
Cause No. 20D03-1206-FA-32
October 17, 2013
OPINION - FOR PUBLICATION
BROWN, Judge
Timothy L. Hyser appeals his convictions for child molesting as a class A felony
and child molesting as a class C felony. Hyser raises three issues, one of which we find
dispositive and restate as whether he was improperly denied a meaningful opportunity to
present a complete defense. We reverse.
FACTS AND PROCEDURAL HISTORY
In 2007, Joni Miller and her son, J.M., who was born in January 2005, moved into
a house in Elkhart County, Indiana, next to Hyser’s house. In April or May of 2008,
Mark Marner, Miller’s boyfriend, moved in with Miller and J.M. At some point, Hyser
became friends with Miller, Marner, and J.M.
On December 27, 2011, the police contacted Miller because there had been a
report to the Department of Child Services (“DCS”) that Marner was abusing J.M.
Detective Charles Osterday with the Elkhart County Sheriff’s Department investigated
the report together with an investigator from DCS. During the investigation, Detective
Osterday obtained information from J.M. that he had been sexually abused by Hyser.
In June 2012, the State charged Hyser with Count I, child molesting as a class A
felony, and Count II, child molesting as a class C felony. The State filed a motion in
limine requesting the court to restrict Hyser and his counsel from offering evidence of,
among other things, any mention of Marner’s status as a registered sex offender and any
mention of parental discipline of J.M. by Marner, and the court granted the motion.
A jury trial was conducted during which the jury heard testimony from, among
others, Miller, J.M., Detective Osterday, Marner, and Hyser. Hyser’s counsel informed
the court that Hyser’s position was that the case against him was based upon false
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accusations which were made in retaliation against Hyser for reporting his observations
of Marner abusing J.M. Hyser’s counsel said that Marner threatened Hyser by stating
there would be “hell to pay” if Hyser spoke out about what he observed. Transcript at 4.
During cross-examination of Detective Osterday, Hyser’s counsel asked the identity of
the person who had made the report to DCS that Marner was abusing J.M., and the State
objected. The court stated that Hyser’s statements to DCS were hearsay, that Detective
Osterday could testify that his investigation started when he received a call from DCS,
and that the fact that the report was made by Hyser was inadmissible hearsay. Hyser
testified that the allegations against him were false, that he would never molest a child,
that he had eleven grandchildren, that J.M. “was never at [his] house by himself unless
[he] was babysitting for him which they asked me to do or they were there,” and that J.M.
“was never sent over to play with the animals, given a time to stay. That never
happened.” Id. at 287.
Later, Hyser presented an offer to prove, and presented the testimony of Deborah
Collins, Melvin Key, Marner, and Miller. Collins testified that, while visiting with
Hyser, she witnessed Marner physically strike J.M. Specifically, Collins testified that
Marner “doubled up his fist and hit [J.M.] in the side, buckled the little boy to the
ground.” Id. at 335. Collins testified that she told Marner “not to ever, ever let [her] see
him do that again, that it was child abuse, and it wouldn’t be beyond [her] to turn him in.”
Id. Key testified that, in 2011 while visiting Hyser and his neighbor Marner, he observed
Marner strike J.M. Key testified that “[i]t was not discipline,” that J.M. was “kind of
doing a drop-kick,” that Marner “hit him in the right hip, which stopped [J.M.’s] forward
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progress, back him up, and dropped him on the floor,” and that Marner “doubled his fist
and hit [J.M.] in the right hip and stopped him in mid-air.” Id. at 338.
Marner testified that he had registered as a sex offender with the Elkhart County
Sheriff. He stated that he recalled a time in August 2011 when he was at Hyser’s house
with Collins when she told him never to hit J.M. like that again or that she would notify
DCS. When asked “[d]id there come a time a few days after this incident with [] Collins
that you went back and told [] Hyser that J.M. had made some allegations about him,”
Marner stated: “I think that was the first time, yes, about him putting his penis in his
mouth.” Id. at 345. Marner testified that, after that time, J.M. went to Hyser’s house
only under supervision. Marner stated that he did not call DCS or the police about the
incident J.M. reported to him in August 2011. When asked “despite this statement from
[J.M.], you still allowed [] Hyser to watch him when he got off the bus from time to
time,” Marner responded affirmatively. Id. at 347. Hyser also offered an exhibit
indicating that Marner was a registered sex offender.
Hyser’s counsel argued that the testimony and evidence Hyser wished to present
showed the retaliatory motive of Marner and that the allegations against Hyser were
fabricated. Hyser’s counsel argued that the facts to which Collins and Key testified were
“objectively observed,” that Hyser’s “contention and defense is that [] Marner had [J.M.]
make up these stories, fabricate these stories, about sex abuse involving [] Hyser in order
to blunt or put the end to the investigation into [] Marner and his abuse with [J.M.],” that
“it’s a form of retaliation; it goes to [] Marner’s motive,” that “his motive would be
relevant [] and admissible,” and that the facts “prove the defense of retaliation.” Id. at
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353-354. The State argued that the testimony of Collins and Key was not relevant
because of the time between the August 2011 incident and the December 2011 disclosure.
The court found that Collins would not be allowed to testify as reflected in the offer to
prove and that Key’s testimony was not relevant.
Hyser’s counsel further argued that the fact that Marner was a registered sex
offender was relevant because it showed that Marner knew how the system worked, that
he understood that, if there were a new charge against him, then J.M. could be taken
away from him and he could be charged with a crime, and that he had a strong motivation
to put an end to the investigation. The court did not admit Hyser’s proffered evidence
that Marner was a registered sex offender on the basis that it was not relevant. With
respect to Hyser’s request to elicit testimony that Marner threatened Hyser, the State
argued that the statement would be hearsay and irrelevant given that the disclosure
occurred in December 2011. The court stated: “I’m not going to allow the evidence of a
threat. I am going to allow, however, the testimony of [] Marner concerning the fact that
the child made a disclosure to him earlier, and that he allowed [Hyser] access to the child
even after that disclosure was made.” Id. at 363.
Hyser was found guilty as charged on Counts I and II. The court sentenced Hyser
to thirty years for his conviction under Count I and four years for his conviction under
Count II, to be served concurrent with each other.
ISSUE AND ARGUMENTS
The issue is whether Hyser was denied a meaningful opportunity to present a
complete defense. Hyser contends that the trial court prevented him from presenting
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testimony and evidence critical to his defense, namely, certain testimony he wished to
elicit from Collins, Key, and Detective Osterday, and the evidence that Marner was a
registered sex offender. Hyser argues that, “from the very outset [his] defense was
predicated upon the theory that Marner had influenced J.M. to falsely accuse him of child
molest[ation] in retaliation for Hyser taking action in reporting Marner to the authorities
for physically abusing J.M.,” that “[t]his defense certainly had some degree of
plausibility when the evidence is viewed as a whole,” and that “[t]he trial court refused to
permit Collins to testify as to what she saw and what she said to Marner.” Appellant’s
Brief at 7-8. Hyser further argues that Key also testified that he witnessed physical abuse
by Marner, and that he attempted to elicit testimony from Detective Osterday which
would tend to show that it “was his report of physical abuse that prompted J.M.’s report
of sexual allegations.” Id. at 8. Hyser maintains that testimony he wished to elicit was
not inadmissible hearsay and that “clearly the intent was that this evidence about the
report of physical abuse was not being offered for the truth of those facts, but merely to
show that the statement was made.” Id. Hyser also maintains that the court wrongly
excluded evidence that Marner was a registered sex offender as it “was relevant to help
prove that Marner had the prior experience to know how the system worked and therefore
how to coach J.M. to tell a more convincing story.” Id. at 9. Hyser asserts that the
wrongful exclusion of the corroborative testimony of Collins, Key, and Detective
Osterday, as well as the evidence that Marner was a registered sex offender, prevented
him from having a meaningful opportunity to present a complete defense which
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prejudiced his substantial rights under the Fourteenth and Sixth Amendments, and thus
that he deserves a new trial.
The State maintains that the trial court did not improperly impinge on Hyser’s
right to present a defense. The State argues that Collins did “not identify when the
incident she observed had occurred,” that Key indicated the incident “he had observed
occurred in 2011 but did not specify when,” and thus that the court “properly found the
proposed testimony by Collins and Key was not relevant, as Hyser did not show any
connection between Collins and Key’s allegation that Marner had struck J.M. and J.M.’s
report of sexual abuse by Hyser in December 2011.” Appellee’s Brief at 7. The State
also asserts that the testimony Hyser wished to elicit from Detective Osterday was
inadmissible hearsay and that Marner’s status as a sex offender was not relevant.
DISCUSSION
“Whether rooted directly in the Due Process Clause of the Fourteenth Amendment
or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, the
Constitution guarantees criminal defendants a meaningful opportunity to present a
complete defense.” Kubsch v. State, 784 N.E.2d 905, 923-924 (Ind. 2003) (quoting
Crane v. Kentucky, 476 U.S. 683, 690, 106 S. Ct. 2142 (1986)) (internal quotation marks
omitted). The Indiana Supreme Court stated:
The right to offer the testimony of witnesses, and to compel their
attendance, if necessary, is in plain terms the right to present a defense, the
right to present the defendant’s version of the facts as well as the
prosecution’s to the jury so it may decide where the truth lies. Just as an
accused has the right to confront the prosecution’s witnesses for the
purpose of challenging their testimony, he has the right to present his own
witnesses to establish a defense. This right is a fundamental element of due
process of law.
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Id. at 924 (citing Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, (1967)). A
defendant has a right to present evidence tending to show that someone other than the
accused committed the charged crime and that the exclusion of such evidence by the trial
court “appears inconsistent with substantial justice and therefore cannot be deemed
harmless error.” Allen v. State, 813 N.E.2d 349, 361 (Ind. Ct. App. 2004) (citing Joyner
v. State, 678 N.E.2d 386, 390 (Ind. 1997), reh’g denied), trans. denied. When competent,
reliable evidence is excluded that is central to the defendant’s case, this right is abridged.
Id. (citing Crane, 476 U.S. at 690, 106 S. Ct. 2142).
The standard of review for admissibility of evidence issues is whether the trial
court’s decision was an abuse of discretion. Id. Generally, errors in the admission or
exclusion of evidence are to be disregarded as harmless unless they affect the substantial
rights of a party. Id. In determining whether an evidentiary ruling affected a party’s
substantial rights, the court assesses the probable impact of the evidence on the trier of
fact. Id.Ind. Evidence Rule 401 provides that “‘[r]elevant evidence’ means evidence
having any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without the
evidence.” Relevant evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice. Ind. Evidence Rule 403. Hearsay is a
statement, other than one made by the declarant while testifying at the trial or hearing,
offered in evidence to prove the truth of the matter asserted, and hearsay is generally not
admissible into evidence. Ind. Evidence Rules 801, 802.
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Throughout the trial, from presenting arguments in response to the State’s motion
in limine to presenting the offer to prove and calling witnesses in doing so, Hyser
attempted to present a defense that the allegations and testimony against him were
fabricated as a retaliatory act in response to the report he made to DCS that he believed
J.M. was being abused by Marner. Hyser wished to elicit testimony from Collins, as
presented in his offer to prove, which demonstrated that the allegations against Hyser
were first raised a short time after Collins threatened to report Marner. Hyser also wished
to elicit testimony from Key that he witnessed Marner strike J.M., and from Detective
Osterday that the report to DCS on December 27, 2011, was made by Hyser and that the
report prompted J.M.’s allegations that Hyser had molested him. In addition, Hyser
wished to present evidence to the jury that Marner was a registered sex offender in
support of his defense that the allegations against him were fabricated.
The testimony which Hyser wished to elicit from Collins, Key, and Detective
Osterday and the evidence that Marner was a registered sex offender was relevant as the
evidence had, at a minimum, the tendency to show that the molestation allegations
against Hyser were untrue and were made, or caused to be made by J.M. through the
influence of Marner, in retaliation or in response to Hyser’s action of making a child
abuse report regarding Marner. See Smith v. State, 982 N.E.2d 393, 402 (Ind. Ct. App.
2013) (“In order to be relevant, the evidence at issue need only have some tendency,
however slight, to make the existence of a material fact more or less probable, or tend to
shed any light upon the guilt or innocence of the accused.”) (citation and internal
quotation marks omitted), trans. denied. In addition, we note that the testimony Hyser
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wished to elicit regarding his report to DCS was not inadmissible hearsay because Hyser
did not wish to present it to prove the truth of the matter asserted, but instead to
demonstrate that he had made the report against Marner a few days prior to the time he
was first accused of the molestations, and the report provided a motive for Marner to
retaliate against him by fabricating the molestation allegations and influencing J.M. to
testify against Hyser. See Dyson v. State, 692 N.E.2d 1374, 1376 (Ind. Ct. App. 1998)
(holding that the trial court erred in excluding certain testimony as hearsay because the
defendant introduced the testimony not to prove the fact of the matter asserted but to
demonstrate that the victim was biased and prejudiced against him) (citing Shanholt v.
State, 448 N.E.2d 308, 316 (Ind. Ct. App. 1983) (“A witness’s bias, prejudice or ulterior
motives are always relevant at trial in that they may discredit her or affect the weight of
her testimony.”)). In addition, we note that Ind. Evidence Rule 803(3) provides an
exception to the hearsay rule for statements of a “declarant’s then existing state of mind,
emotion, sensation, or physical condition (such as intent, plan, motive, design, mental
feeling, pain and bodily health) . . . ”); Pelley v. State, 901 N.E.2d 494, 504 (Ind. 2009)
(holding that a declarant’s statements showed his intent to act in a particular way to
restrict the defendant’s activities and were relevant to show the defendant’s motive and
were therefore admissible under the hearsay exception for then-existing state of mind),
reh’g denied; Ross v. State, 676 N.E.2d 339, 345 (Ind. 1996) (noting that admissible
statements include those offered “to show the intent of the victim to act in a particular
way”). Thus Hyser may present evidence of Marner’s threat to him to the extent that the
threat revealed that Marner intended to make false accusations, or is relevant to Marner’s
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motive for doing so. In light of the facts of this case, the probative value of the evidence
Hyser wished to present is not substantially outweighed by the danger of unfair prejudice,
and the exclusion of the evidence is inconsistent with substantial justice and is therefore
not harmless.
We also observe that the defense Hyser wished to present was not implausible and
that the jury may have believed that his version of the facts was true. To the extent the
State argues that Collins did not identify when the incident she observed involving
Marner striking J.M. had occurred, Marner acknowledged that the incident occurred in
August 2011 several days before he stated that J.M. told him that Hyser had molested
him. Marner indicated that, although J.M. had told him that Hyser had molested him in
August 2011, he did not report the molestation allegations to police or DCS and
continued to permit J.M. to visit Hyser, unsupervised at least one time. Miller testified
that J.M. told her and Marner that Hyser molested him the day before Christmas Day in
2011, that she asked J.M. what he wanted to do about it, and that, because they were
leaving town the next morning to stay with Marner’s family for two nights, she told J.M.
that they would talk about it after they came home. Miller testified that she did not talk
to J.M. about what he had reported during the trip and that she was contacted by the
police on December 27, 2011. The molesting allegations were not disclosed to DCS or
police until there was an investigation related to Hyser’s December 27, 2011 report to
DCS that he believed that Marner was abusing J.M. The evidence Hyser wished to
present supports his defense, and the jury may have believed his version of the facts.
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The testimony and evidence Hyser wished to elicit and present was exculpatory,
unique, and critical to his defense. The trial court did not permit Hyser to present his
defense that the allegations and testimony against him were untrue and fabricated in
retaliation or response to the fact that he had made a report to DCS that he believed
Marner was physically abusive toward J.M. Hyser had the right, as a fundamental
element of due process of law, to present his own witnesses to establish a defense and to
present his version of the facts. Kubsch, 784 N.E.2d at 924. The Indiana Rules of
Evidence did not prohibit him from presenting the evidence and testimony he wished to
present and elicit. Based upon the record, the exclusion of the evidence Hyser wished to
present deprived him of a meaningful opportunity to present a complete defense.
Accordingly, we reverse Hyser’s convictions on this basis and note that the State is not
barred from retrying Hyser. See Allen, 813 N.E.2d at 361-366, 369 (finding that certain
testimony the defendant wished to present was exculpatory, unique, and critical to the
defendant’s defense, that there was no other source to rely upon to present this part of his
defense, that the evidence went to the very heart of this fundamental right, and that the
trial court’s exclusion of the testimony made outside the presence of the jury impinged
upon the defendant’s right to present a complete defense and deprived him of a
meaningful opportunity to present a complete defense, reversing the defendant’s
convictions on that basis, and noting the State was not barred from retrying the
defendant).1
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Because we reverse on the basis that Hyser was deprived of a meaningful opportunity to present
a complete defense, we need not address the other allegations of error claimed by Hyser.
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CONCLUSION
For the foregoing reasons, we reverse Hyser’s convictions for child molesting as a
class A felony and child molesting as a class C felony.
Reversed.
NAJAM, J., and MATHIAS, J., concur.
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