APPEAL FROM THE GRANT COUNTY SUPERIOR COURT TWO, THE HONORABLE THOMAS G. WRIGHT, JUDGE, CAUSE NO. SCR-85-7.
Shields, P.j., Garrard, J., and Buchanan, J., concurs.
Evelyn Gibson (Gibson) appeals her convictions upon three counts of promoting prostitution under Ind. Code Ann. § 35-45-4-4 (Burns 1985). Gibson was convicted on Count I for knowingly or intentionally enticing or compelling another person, under eighteen years of age, to become a prostitute; on Count III for knowingly or intentionally permitting another person to use a residence, over which Gibson had control, for prostitution; and on Count IV for receiving money from a prostitute, without lawful consideration, knowing it was earned in whole or in part from prostitution.
The issues on appeal are 1) whether Gibson was denied a fair trial when the State violated discovery orders, and 2) whether the evidence is sufficient to support her convictions on Count I and Count IV.
Evelyn Gibson ran a house of prostitution in her home in Muncie, Indiana, in 1984. Gibson employed Tiki Jo Everrett, JoAnn Beaty and Diane Miller as prostitutes, collecting a percentage of their earnings. JoAnn Beaty was sixteen years old at the time she worked for Gibson.
Police officer Steven Stanley visited Gibson's house posing as a customer and obstensibly employed the services of prostitute Tiki Jo Everrett. Stanley paid Everrett, who was at the time assisting police, fifty dollars in marked bills. Everrett gave the marked bills to Gibson, which resulted in Gibson's arrest on October 25, 1984. Trial by jury ensued on June 10, 1985.
Prior to trial, Gibson filed three motions to produce, all of which were granted. All three motions were identical and ordered the State to produce, among other things:
"1. The names and addresses of persons whom the Prosecuting Attorney intends to call as witnesses at the trial, together with their relevant written or recorded statements;
9. Any evidence the Prosecution might have, favorable to this defendant;
16. Any victim's statements. . . ."
Record at 45-46, 49-50, 116-117. Gibson proceeded to trial, believing the State had provided all ordered discovery materials.
At trial the jury returned guilty verdicts on Counts I, III and IV. Gibson's motion to correct errors was denied. After filing her record of proceedings with the Clerk of this court, Gibson learned of the existence of three audio-recorded statements of State's witnesses the prosecution had failed to provide pursuant to the discovery orders. All were interviews conducted prior to trial at the prosecutor's office by the prosecutor and his chief investigating officer. Two were with State's witness JoAnn Beaty, and one with State's witness Diane. Miller.
The existence of these statements was revealed during the trial of Howard Burns, which took place after Gibson's trial, and at which both JoAnn Beaty and Diane Miller testified as State's witnesses.[Footnote 1]
When Gibson learned of the tapes, she was granted permission to file a belated motion to correct errors and allowed to inspect and copy the tapes. At a hearing on her belated motion to correct errors, Gibson introduced transcripts of the tapes and claimed that she had been denied a fair trial because statements on the tapes "differed from trial testimony in many material ...