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01/28/88 WILLIAM JOSEPH HARP v. STATE INDIANA

Filed: January 28, 1988.

WILLIAM JOSEPH HARP, DEFENDANT-APPELLANT,
v.
STATE OF INDIANA, PLAINTIFF-APPELLEE



Appeal From The Washington Circuit Court, The Honorable Robert L. Bennett, Judge, Cause No. 85-CR-50.

Neal, J., Robertson, J., and Garrard, P.j., Concur.

Author: Neal

STATEMENT OF THE CASE

Neal, J.

Defendant-appellant, William Joseph Harp (Harp), appeals his conviction by the Washington Circuit Court of child molesting, a Class C felony under IND. CODE 35-42-4-3(b).

We affirm.

STATEMENT OF THE FACTS

On May 2, 1985, an Information was filed in the Washington Circuit Court charging Harp with child molesting. The Information alleged that Harp had molested J.S., a three-year-old girl, on or about October 1, 1984, On May 20, 1986, Harp filed a notice to take the deposition of J.S. for discovery purposes. On May 27 the State filed a petition, pursuant to IND. CODE 35-37-4-6 and IND. CODE 35-47-4-8, for preservation of testimony by videotape. In the petition, the State requested the trial court to issue an order authorizing the preservation of the testimony of J.S. by videotape, and informed Harp that it was the State's intent to introduce the videotape into evidence at his trial. Thereafter, on May 29, the State filed its notice to take J.S.'s deposition. Sometime prior to his trial, Harp agreed with the State to videotape the deposition and to its admissibility at trial. The deposition was taken on May 31 in substantial compliance with IND. CODE 35-37-4-8, although such statute was not effective until September 1, 1986. In addition to J.S. and the prosecutor, the following persons attended the deposition: J.S.'s mother, a court reporter, a caseworker and psychologist from a mental health center, an individual to operate the video equipment, and counsel for Harp. Harp was not physically present during the deposition. However, a monitor set up in an adjoining room permitted him to simultaneously observe the deposition as it transpired. Both the prosecutor and Harp's counsel questioned J.S.

On June 11, the morning of his jury trial, Harp filed an object to the introduction of the videotape. During a hearing outside the presence of the jury, Harp affirmed that he agreed to the manner in which the deposition was taken and that it would be admissible at his trial. He explained, however, that he was registering an objection to the videotape in order to preserve his right to raise the constitutionality of IND. CODE 34-37-4-6 on confrontation clause grounds. The trial court subsequently overruled the motion. When the videotape was offered into evidence Harp registered no objection other than that which he had already placed into the record. Thereafter, the videotape was viewed by the jury.

Prior to trial Harp also filed a motion in limine to prevent the State from introducing evidence of prior sexual misconduct. Harp allegedly molested his two daughters and another young girl while each was between three and 14 years old. Harp had never been charged or tried in connection with any of the molestations, and they had occurred at least 10 years prior to the crime for which he was currently being tried. The trial court granted the motion in limine, subject to a separate hearing to be held to determine the admissibility of such testimony when it was introduced. The trial court later permitted each of them to testify that they had been previously molested by Harp during childhood. At the Conclusion of his trial, the jury was instructed that they were to consider the evidence of the prior molestations only as it related the the issue of intent. On June 13 the jury returned its verdict, finding Harp guilty as charged. He was sentenced to an eight-year term of imprisonment. He was subsequently instituted this appeal.

STATEMENT OF THE ISSUES

On appeal Harp claims the trial court erred in:

I. Admitting the videotaped deposition of J.S.; and

II. Permitting testimony regarding prior acts of ...


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