ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
SUSAN K. CARPENTER STEVE CARTER
Public Defender of Indiana Attorney General of Indiana
J. MICHAEL SAUER MICHAEL GENE WORDEN
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
COURT OF APPEALS OF INDIANA
DAVID E. TINKHAM, )
vs. ) No. 01A04-0206-CR-255
STATE OF INDIANA, )
APPEAL FROM THE ADAMS CIRCUIT COURT
The Honorable Frederick A. Schurger, Judge
Cause No. 01C01-0109-CF-24
April 30, 2003
OPINION - FOR PUBLICATION
David Tinkham appeals his convictions for child molesting as a Class A felony
and child molesting as a Class C felony. We reverse.
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 Tinkhams wife.
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.
See footnote M.B. called the Tinkhams mom
In July 2001, M.B. indicated to her childcare provider that Tinkham had been
molesting her. The childcare 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. M.B. testified that Tinkham at various times had
licked her crotch, touched her boobs, and forced her to suck his dick
and feel his balls. Tr. p. 335.
At trial, Tinkham argued that M.B. had lied about the molestation because she
wanted to go live with Tinkhams daughter. He also presented evidence that
M.B. had been present when Tinkhams and Kims other children had engaged in
explicit sexual talk, had walked in on Tinkhams 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, Im 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.], shes not my f
ing kid anyway. Tr. p.
380. 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, Tinkham now
I. Jury Instruction
Tinkham challenges the trial courts 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. 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 jurys attention on and highlights a single witnesss
testimony. Second, it presents a concept used in appellate review that is
irrelevant to a jurys 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 defendants guilt aside
from the victims 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 Tinkhams jury. We observe that 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 victim and thus implie[d] to the jury that the
trial judge accepts as truthful the complaining witnesss 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 Tinkhams 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 victim 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
App. p. 189. The State argues that the second phrase of the
instruction sufficiently advises the jury not to place undue weight on one witnesss
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 witnesss 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 witnesss
testimony once again. We do not believe this instruction cures the error
created by instructing the jury that it could find Tinkham guilty based upon
the uncorroborated testimony of a witness.
II. Statements of Kim Tinkham
In sum, the challenged instruction was improper and not cured by other proper
instructions. The question now is whether the error was harmless; we must
conclude that it was not. M.B.s testimony establishing Tinkhams guilt was uncorroborated
by any physical evidence or any other witnesss statements or testimony. Although
M.B.s taped interview with the police was also played for the jury, our
supreme court recently stated, in a case where a child molestation prosecuting witness
had testified in court, that her testimony was uncorroborated, although apparently the mother
also recited what the child had told her and a videotaped police interview
was played for the jury. Carter v. State, 754 N.E.2d 877, 879-80
(Ind. 2001), cert. denied, -- U.S. --, 123 S. Ct. 135 (2002); see also Dinger
v. State, 540 N.E.2d 39, 40 (Ind. 1989) (not referring to videotaped police
statement of child molestation victim as corroborating evidence of her trial testimony but
referring to medical evidence and testimony of child molestation victims brother and sister
as corroborating). Thus, because M.B.s testimony establishing Tinkhams guilt was in fact
uncorroborated, unlike in Ludy, we cannot say that the giving of the erroneous
instruction was harmless. Our supreme court expressly stated that the new rule
it announced in Ludy applies to those appellants whose cases properly preserved the
issue and whose cases are now pending on direct appeal. Ludy, 784
N.E.2d at 462. Given this language and the application of the Ludy
rule to Tinkhams case, we conclude that we are compelled to reverse his
Because the issue may arise during a retrial, we consider whether the trial
court erred in permitting the Office of Family and Children case manager to
testify that upon first meeting Kim Tinkham, she stated, Im 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.], shes not my
ing kid anyway. Tr. p. 380. Trial courts have wide latitude
in ruling on the admissibility of evidence and in determining its relevancy.
Williams v. State, 749 N.E.2d 1139, 1142 (Ind. 2001). Relevant evidence is
admissible and includes 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. Ind. Evidence
Rules 401 and 402. Additionally, even relevant evidence should be excluded if
its probative value is substantially outweighed by the danger of unfair prejudice, confusion
of the issues, or misleading the jury . . . . Evid.
R. 403. Tinkham argues that the above statements of his wife were
irrelevant to the charges against him and were highly prejudicial to his defense.
The State counters that the statements were relevant to its claim that
M.B. was placed under pressure from members of her family to recant her
allegations against Tinkham.
Kims challenged comments regarding M.B., especially the last one, are at the least
disheartening and at the most callous, if not cruel. That is the
problem with their admission. We find that any probative value the comments
may have had on the issue of M.B.s temporary recantation of the molestation
allegation were very slight. There was other direct evidence from M.B. herself
claiming she had been urged by family members to recant her allegation, thus
making Kims comments cumulative on that issue, assuming they had any probative value.
We believe the minimal probative value the statements might have had was
substantially outweighed by their prejudicial effect. The comments were in no way
connected to Tinkham himself and bore little relevance to whether he molested M.B.,
but the hostile nature of the comments by a person who was M.B.s
de facto mother may have tended to elicit sympathy for M.B. in the
eyes of the jury, which constitutes a confusion of the issues before it.
The prosecutor also referred to the comments during closing argument, thus increasing
their prejudicial effect. On retrial, the comments should not be allowed into
We conclude, pursuant to Ludy v. State, that the trial court committed reversible
error by instructing the jury, You may convict the Defendant upon the uncorroborated
testimony of a witness. Additionally, in the event of a retrial the
trial court should not allow into evidence the statements of Kim Tinkham discussed
in Part II of this opinion. We reverse and remand for further
proceedings consistent with this opinion.
Reversed and remanded.
RILEY, J., and SHARPNACK, J., concur.
The presentence investigation report indicates that M.B. was the daughter of Kim
Tinkhams cousin, had lived with the Tinkhams since her birth, and the Tinkhams
were appointed M.B.s legal guardians in 1994.