Accused molester denied chance to present complete defense

Finding the testimony and evidence a man accused of child molesting wished to present at trial – but was denied by the trial court – was critical to his defense, the Indiana Court of Appeals reversed his two molestation convictions.

Timothy Hyser was accused of molesting his young neighbor J.M. The accusation came to light in December 2011 when police investigated a report of abuse against J.M. by his mother’s boyfriend, Mark Marner.

Hyser contended that the trial court prevented him from presenting testimony and evidence critical to his defense, namely, certain testimony he wished to elicit from Deborah Collins, Melvin Key, and Detective Charles Osterday, and the evidence that Marner was a registered sex offender. Collins and Key both testified that they had observed Marner strike J.M. in 2011. Hyser wanted the evidence Marner was a registered sex offender entered to show Marner knew how the system worked and that J.M. could be taken away from him if a new charge was filed against him.

Hyser’s defense was predicated on the theory that Marner had influenced J.M. to falsely accuse him of child molesting in retaliation for Hyser taking action reporting Marner to the authorities for physically abusing J.M. Hyser argued the testimony he wanted to elicit was not inadmissible hearsay, as the trial court had ruled.

“The testimony and evidence Hyser wished to elicit and present was exculpatory, unique, and critical to his defense. The trial court did not permit Hyser to present his defense that the allegations and testimony against him were untrue and fabricated in retaliation or response to the fact that he had made a report to DCS that he believed Marner was physically abusive toward J.M.,” Judge Elaine Brown wrote in Timothy L. Hyser v. State of Indiana, 20A05-1301-CR-37. “Hyser had the right, as a fundamental element of due process of law, to present his own witnesses to establish a defense and to present his version of the facts.”

Brown noted in reversing the molestation convictions that the state is not barred from retrying Hyser.