Although the trial court abused its discretion when it did not allow a person to testify on behalf of the defendant based on a separation of witnesses violation, the error was harmless, ruled the Court of Appeals in affirming a man’s felony convictions of vicarious sexual gratification and possession of child pornography.
Kevin Townsend appealed his convictions of Class B felony vicarious sexual gratification and Class D felony possession of child pornography, challenging sufficiency of evidence and the denial by the court to allow Ashley Jackson to testify. The trial had a separation of witnesses restriction in place and Jackson, who was not on a witness list, sat in for almost the entire trial. After the state finished calling its witnesses, Townsend asked that Jackson be allowed to testify. He claimed she would testify about how co-defendant Amy Spampinato, with whom Jackson was in jail, would have to bring Townsend “down to make herself look better.”
Spampinato and Townsend sometimes dated and through her, Townsend met S.W., a 13-year-old girl. Townsend made advances toward S.W., who rebuffed him. When he was out of town, S.W. and her friend, C.S., spent the night at Spampinato’s home. Townsend, while speaking on the phone with Spampinato, learned the girls would be staying there and told her to perform sex acts on them and keep them satisfied until he could get there. He was in Kentucky driving a truck.
Spampinato got the girls intoxicated and recorded the sexual acts as well as spoke on the phone with Townsend while they were occurring. S.W. also spoke to Townsend that night. The girls left before he got there the next day, and he masturbated to a video of the sexual acts.
Citing Farris v. State, 818 N.E.2d 63, 69 (Ind. Ct. App. 2004), the Court of Appeals found the trial court abused its discretion in not allowing Jackson to testify. The judge did not make a finding of bad faith or substantial prejudice to the state. Jackson’s testimony would have challenged the credibility of Spampinato and was thus relevant, Judge Elaine Brown wrote.
But the exclusion of Jackson’s testimony was harmless because Spampinato had testified she had taken a plea agreement and was in the Department of Correction. She indicated she had to testify in the case as part of the plea deal.
In addition, the evidence admitted at trial – including the video – shows Spampinato’s role in the incident. That video, along with the testimony of C.S., S.W. and others, supports Townsend’s convictions, the COA held in Kevin Townsend v. State of Indiana, 09A02-1407-CR-464.