ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MARK MAYNARD JEFFREY A. MODISETT
Anderson, Indiana Attorney General of Indiana
J. T. WHITEHEAD
Deputy Attorney General
SUPREME COURT OF INDIANA
EDWARD D. BROWN, )
) Supreme Court Cause Number
STATE OF INDIANA, )
APPEAL FROM THE MADISON SUPERIOR COURT
The Honorable Thomas Newman, Jr., Judge
Cause No. 48D03-9612-CF-421
ON DIRECT APPEAL
May 26, 2000
After a trial by jury Edward Brown was convicted of two counts of
child molesting as Class A felonies. He was also adjudged a habitual
offender. In this direct appeal Brown raises two issues for our review
which we rephrase as follows: (1) did the trial court err by
admitting the deposition testimony of the two child witnesses, and (2) did the
trial court err by allowing the State to amend the charging information at
the close of its case in chief after Brown had moved for a
directed verdict. We affirm.
Brown is the great-uncle of J.F. and D.F. The record shows that
several times during the summer and fall of 1996 Brown baby-sat the children
in his home. They were then seven and five years of age
respectively. On two occasions Brown ordered J.F. to perform fellatio on him
and J.F. complied. On one occasion D.F. witnessed the act. As
a result of this conduct the State charged Brown with two counts of
child molesting. The charging information alleged that the offenses occurred on or
between various dates in August, 1996. R. at 12. Brown was
also charged as a habitual offender. During the guilt phase of trial
Brown cross-examined J.F., pointing out inconsistencies between the childs trial and deposition testimony.
In rebuttal the State sought to offer the entire deposition into evidence.
Over Browns objection the trial court admitted the deposition without redaction.
D.F. also testified during the guilt phase of trial. Just before the
close of its case in chief, the State sought to introduce portions of
D.F.s deposition into evidence. Over Browns timeliness objection the trial court allowed
After the State rested its case, Brown moved for a directed verdict on
grounds that the State introduced no evidence that the alleged offenses occurred in
August 1996. The State then orally moved to amend the charging information
to show that the offenses occurred on various dates in 1996. R.
at 260. The trial court granted the motion, the defense rested without
presenting evidence, and the jury ultimately returned a verdict of guilty as charged.
The trial court then reconvened the jury for the habitual offender phase
of trial. Thereafter Brown was adjudged a habitual offender. The trial
court sentenced Brown to consecutive fifty-year terms for each count of child molesting
and enhanced one of the counts by thirty years for the habitual offender
adjudication. This direct appeal followed.
Brown contends the trial court erred by admitting J.F.s unredacted deposition over his
objection because it contained matters that were immaterial, irrelevant, and prejudicial. Under
the doctrine of completeness a party may place the remainder of a statement
or document before the jury after the opposing party has introduced a portion
of that statement or document into evidence. Evans v. State, 643 N.E.2d
877, 881 (Ind. 1994) (ruling that a witness statement to police as well
as his deposition was admissible under the doctrine of completeness). This doctrine
prevents a party from misleading the jury by presenting statements out of context.
However, the remainder of the statement or document is subject to the
general rules of admissibility and portions found to be immaterial, irrelevant, or prejudicial
must be redacted. Id.
Before the trial court Brown did not move to redact the deposition, nor
did he object to its introduction on grounds that it contained alleged immaterial,
irrelevant, or prejudicial matters. Rather, Brown argued that because he did not
introduce any portion of the deposition into evidence, the State was precluded from
introducing any other portion of the deposition. R. at 170. He
also argued that at most the State was only allowed to introduce those
portions of the deposition that put the alleged impeaching testimony into context.
See footnote A party may not object on one ground at trial and
raise a different ground on appeal.
Malone v. State, 700 N.E.2d 780,
784 (Ind. 1998). This issue is waived for review. Id.
Waiver notwithstanding, Brown still cannot prevail. In this appeal the only alleged
improper matter Brown brings to our attention is that [J.F.]s deposition included a
discussion of the fact that Brown was in jail. Brief of Appellant
at 7. Brown neither elaborates on this assertion nor explains how he
was harmed. Further, our review of the deposition shows that the jail
reference had to do with whether J.F. understood why Brown was in trouble
with the police and why J.F. was being questioned. The reference occurred
in the context of the present offenses as opposed to some other misconduct.
Thus, we do not see how Brown was prejudiced by the introduction
of the unredacted deposition. Assuming without deciding that the jail reference was
irrelevant or immaterial, the context in which it was made convinces us that
any error in failing to redact the reference was harmless.
Brown contends the trial court erred also by admitting the deposition of J.F.
as well as portions of D.F.s deposition because they were not offered timely.
Citing Indiana Evidence Rule 106, Brown argues the State was required to
offer the exhibits contemporaneously with his introduction of portions of the exhibits.
The Rule provides when a writing or recorded statement or part thereof is
introduced by a party, an adverse party may require
at that time the
introduction of any other part or any other writing or recorded statement which
in fairness ought to be considered contemporaneously with it. Id. (emphasis added).
Seizing on the highlighted language Brown complains the State did not seek
to introduce J.F.s deposition until after the child left the witness stand and
did not introduce portions of D.F.s deposition until just before the close of
the States case in chief.
Modeled after Federal Rule 106, Indiana Evidence Rule 106 codifies the completeness doctrine
discussed infra. Prior to our adoption of the Rules a misleading impression
created by taking matters out of context could not be remedied on the
spot. Rather, an opposing party was required to wait until her own
presentation of the evidence. See, e.g., Davis v. State, 481 N.E.2d 387,
389 (Ind. 1985); Bass v. State, 136 Ind. 165, 170, 36 N.E. 124,
125 (1894). Rule 106 changed the timing of the introduction of the
remainder of the document. Now a party may, but is not required
to, introduce completeness evidence at an earlier stage of the trial. See
Stephen A. Saltzburg et al,
Federal Rules of Evidence Manual 103-04 (7th
ed. 1998) ([Federal] Rule 106 authorizes the introduction of completeness evidence during the
initial presentation of the writing or recording, but does not require the adversary
to introduce the material at that point.) (emphasis original); 1 Jack B. Weinstein
& Margaret A. Berger, Weinstein's Federal Evidence § 106.05 (Joseph M. McLaughlin, ed.,
Matthew Bender 2d ed. 2000) (The opponent against whom a document or recording
is offered has the right to wait and put the remainder in evidence
on cross-examination or as part of his or her case . . .
.). In the case before us the State elected to introduce the
deposition of J.F. and portions of the deposition of D.F. at a time
other than Browns initial presentation. Although the State could have introduced the
exhibits earlier, it was not required to so. We find no error
on this issue.
Brown next contends the court erred by allowing the State to amend the
charging information at the close of its case in chief after Brown had
moved for a directed verdict. According to Brown, he was unfairly deprived of
his opportunity to make his defense to the charges. Brief of Appellant
The court may permit the State to amend an indictment or information at
any time before, during, or after the trial in respect to any defect,
imperfection, or omission in a form, which does not prejudice the substantial rights
of the defendant. Indiana Code § 35-34-1-5(c). An amendment is one
of form and not substance if a defense under the original information would
be equally available after the amendment and the accused's evidence would apply equally
to the information in either form. McIntyre v. State, 717 N.E. 2d
114, 125 (Ind. 1999). If the amendment does not affect any particular
defense or change the positions of either of the parties, then it does
not prejudice the defendants substantial rights. Sides v. State, 693 N.E.2d 1310,
1313 (Ind. 1998).
To support his contention Brown cites Taylor v. State, 614 N.E.2d 944 (Ind.
Ct. App. 1993). In that case the Court of Appeals reversed one
of six counts of child molesting finding error in the trial court permitting
the State to amend the information at the close of trial. Distinguishing
this courts opinion in Lacy v. State, 438 N.E.2d 968 (Ind. 1982), the
Court of Appeals concluded that interposing an alibi defense is not the only
situation under which an amendment as to the date of an information is
material. Taylor, 614 N.E.2d at 947. Rather the inquiry is whether
the amendment affects the defendants availability of a defense. Id. In
Taylor, the defendant established through cross-examination that the victim was not present in
the State of Indiana during the time set forth in the charging information.
Id. at 946. The Information alleged the offense occurred during a
three-week period during the month of November 1990. Id. The State
rested and then sought to amend the information to conform with the witness
testimony, namely that the offense occurred between September 1990 and November 1990.
Id. In determining that the trial court erred in allowing the amendment
the court noted:
It is clear the State could have originally drafted the charging information alleging
the offense occurred any time within the statute of limitations. . . .
It is equally clear that once the information was drafted, the State had
the authority to amend it at any time, before during or after trial.
. . . However, in the latter instance an amendment is permissible
only if it does not affect the availability of a defense or the
applicability of evidence which existed under the original information.
Id. at 947 (internal citations omitted). Taylor is good law but it
provides Brown no refuge. Brown defended the charges against him by questioning
the victims version of events, pointing out their inability to recall specific details,
challenging their credibility by implying bias, and suggesting that their testimony was influenced
by others. Unlike the defendant in Taylor, here the availability of Browns
defense and the applicability of the evidence under the original information was unaffected
by the amendment. We conclude Browns substantial rights were not affected.
Accordingly the trial court did not err in allowing the State to amend
the information. Conclusion
The trial court did not err by admitting the deposition testimony of the
two child witnesses. Nor did the trial court err by allowing the
State to amend the charging information. We therefore affirm the trial courts judgment.
SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.
On this latter point the record shows that Brown referred to
several different portions of the thirty-five-page deposition when cross-examining J.F. Thus, the
State moved for introduction of the entire document.
More specifically the record shows the following: in response to defense
counsels question of do you know why [Brown] is in jail right now,
J.F. responded, Yes . . . he [d]id something wrong that he was
not supposed to do. R. at 360 (Dep. at 19). Counsel
then asked what Brown did, and J.F. responded by recounting the act for
which Brown was presently on trial. Counsel replied is that why hes
in jail? Id. J.F. answered, Yes. Id.