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02/09/88 BERRY D. ALTMEYER v. STATE INDIANA

Filed: February 9, 1988.

BERRY D. ALTMEYER, APPELLANT,
v.
STATE OF INDIANA, APPELLEE



APPEAL FROM PIKE CIRCUIT COURT, The Honorable Marvin D. Stratton, Judge, Cause No. 84-CR-47.

Givan, J.; Shepard, C.j. and Pivarnik, JJ., concur; DeBruler and Dickson, JJ., concur in result without separate opinion.

Author: Givan

GIVAN, J.

A jury trial resulted in the conviction of appellant of Child Molesting, a Class A felony, and Attempted Child Molesting, a Class A felony. He received two thirty (30) year sentences to be served concurrently.

The facts are: In May and June of 1983, the victim, fourteen-year-old M. M., frequently visited her grandparents at their home in Otwell, Indiana. Around May 21, 1983, M. M. was in an upstairs bedroom of her grandparent's home when appellant, her uncle, came up behind her and put his hand over her mouth. He then hit her head against a dresser several times and threw her on the bed. He held a pillow over her head and ripped open her shirt. With a knife he cut off her bra, then he began to remove his own pants. Before he could do so, M. M. kicked him in the groin and was able to escape.

Approximately two weeks later, M. M. again encountered appellant in her grandparent's home. He told M. M. that if she told anyone about the incident he would do something to her father, and he cut her breast with the knife.

A third incident occurred two weeks later when M. M. was with her younger cousin A. M. at their grandparent's home. When M. M. was in the bathroom, she heard A. M. crying. M. M. went into the bedroom to find appellant with A. M., whose clothes were off. After appellant removed his clothes, he threatened M. M. with a knife and forced her to watch. He then got in bed with A. M. and "did bad things between her legs with his private parts."

After appellant got off of A. M. the two girls went into the bathroom to talk about what had happened. Appellant came into the room and told them if they told anyone about the incidents he would kill them both. He then hit M. M. in the face with his fist, and she received a bleeding wound when her head hit the baseboard.

Feeling dizzy, M. M. lay down on the couch. Later she awakened as appellant was removing her shorts. He removed his pants and had sexual intercourse with her. M. M did not immediately report these incidents because she was afraid.

Appellant first argues that his charges should have been dismissed due to the State's failure to bring him to trial within seventy days of his motion for early trial.

Appellant filed a motion for early trial on October 23, 1985. The State's motion for a continuance was granted, and the trial court stated that due to congestion of the court's calendar the case could not be tried within the seventy-day period. The trial was reset for March 5, 1986.

Appellant made no objection to this new trial date. It was incumbent upon him to object at the earliest opportunity when his trial date was scheduled beyond the limits prescribed by Ind.R.Cr.P. 4(B)(1). Smith v. State (1985), Ind., 477 N.E.2d 857. Because the trial date was confirmed without an objection by appellant, he acquiesced to the later trial date. Id.

Appellant asserts that he was denied a fair trial because the prosecution was allowed to examine the witnesses by using leading questions.

The record reflects that throughout M. M.'s direct and cross-examination she was extremely reticent. She said she was embarrassed and afraid to give her testimony. When the questioning turned to the subject of the molestation, she failed to respond to several questions. The Prosecutor then elicited her testimony by asking her leading questions to which she could respond "yes" or "no". Over appellant's objection, the trial ...


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