Sep 24 2013, 5:34 am
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JOEL M. SCHUMM GREGORY F. ZOELLER Indianapolis, Indiana Attorney General of Indiana
J.T. WHITEHEAD Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
A.T., ) ) Appellant-Defendant, ) ) vs. ) No. 49A02-1212-JV-980 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT The Honorable Marilyn A. Moores, Judge The Honorable Geoffrey A. Gaither, Magistrate Cause No. 49D09-1206-JD-1776
September 24, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
KIRSCH, Judge A.T. appeals an adjudication finding him to be a delinquent child for committing
child molesting,1 an act that would be a Class C felony if committed by an adult. A.T.
raises two issues for our review, which we restate as follows:
I. Whether the juvenile court erred in overruling A.T.’s objection to a nine-year-old victim’s testimony; and
II. Whether the juvenile court erred in excluding the testimony of two late-disclosed witnesses.
We affirm.
FACTS AND PROCEDURAL HISTORY
The facts most favorable to the juvenile court’s delinquency determination are that
in 2011, A.T., a juvenile, lived with his mother, her boyfriend, and her boyfriend’s two
daughters, K.T. and E.T. When E.T. was in the second grade, she learned about good
touches and bad touches through an elementary school program. At the conclusion of the
program, E.T. signed a card indicating that she had received a bad touch. It happened
when she entered A.T.’s bedroom, where he was playing a game. A.T. was sitting up in
front of the television on his bed and he touched her “butt” with his “private.” E.T.
testified that she was wearing clothes at the time. Tr. at 38-49.
On July 2, 2012, the State charged A.T. with child molesting, an act that would be
a Class C felony if committed by an adult. A.T. was also charged with three other
offenses, which were eventually dismissed.
The juvenile court held a denial hearing on October 23, 2012. At the outset of the
hearing, A.T. moved to add two new witnesses. Defense counsel, Harold Thurston
1 See Ind. Code § 35-42-4-3.
2 (“Thurston”), had learned about the new witnesses two days before the hearing, on a
Sunday, and had notified the State the next day. However, the State’s prosecutor, who
had been in court all day, did not receive Thurston’s message until Monday afternoon.
During the denial hearing, Thurston stated that the witnesses purportedly had lived with
A.T. and E.T. at the time of the allegations. Additionally, Thurston offered that, although
he had not yet interviewed the new witnesses, they would testify about the veracity of
E.T. and about A.T.’s relationship with her. Thurston moved to add the witnesses, the
State moved to exclude them, and the trial court granted the State’s motion.
During A.T.’s hearing, the State presented its evidence, including testimony from
E.T. After the State had rested, Thurston argued that E.T.’s testimony was inadmissible
because her competency had not been established. At the time of the hearing, E.T. was
nine years old. The court overruled the objection, finding it untimely.
At the conclusion of the denial hearing, the juvenile court entered a true finding.
A.T. now appeals.
DISCUSSION AND DECISION
A.T. raises two arguments. First, he contends that his true finding of child
molesting should be reversed because, as a foundational matter, neither the State nor the
juvenile court asked any questions to establish the competence of the nine-year-old
victim, E.T. Next, A.T. contends that the trial court abused its discretion when it
excluded his two late-disclosed witnesses.
I. Competence of E.T.
Indiana Evidence Rule 601 provides, “Every person is competent to be a witness
3 except as otherwise provided by these rules or by act of the Indiana General Assembly.”
In interpreting and applying Evidence Rule 601, we have observed that the rule’s failure
to presumptively exclude children does not prohibit special inquiry into their competency
prior to testifying when the issue is raised by the defendant. Burrell v. State, 701 N.E.2d
582, 584 (Ind. Ct. App. 1998); see also Aldridge v. State, 779 N.E.2d 607, 609 (Ind. Ct.
App. 2002) (noting that the current witness-competency statute “assumes competency
until otherwise demonstrated by the opponent of the testimony.”); Harrington v. State,
755 N.E.2d 1176, 1180-81 (Ind. Ct. App. 2001).
A determination of a witness’s competency lies within the sound discretion of the
trial court, and we review only for a manifest abuse of that discretion. Aldridge, 779
N.E.2d at 609. When the presumption of competence is rebutted, “[a] child’s
competency to testify at trial is established by demonstrating that he or she (1)
understands the difference between telling a lie and telling the truth, (2) knows he or she
is under a compulsion to tell the truth, and (3) knows what a true statement actually is.”
D.G. v. State, 947 N.E.2d 445, 448 (Ind. Ct. App. 2011) (citing Kien v. State, 866 N.E.2d
377, 385 (Ind. Ct. App. 2007), trans. denied).
In support of his argument opposing E.T.’s competency, A.T. points to D.G.,
where we reversed a true finding for child molesting because “neither the trial court nor
counsel conducted any inquiry” into the elements of competency listed above. 947
N.E.2d at 449. The present matter is distinguishable. In D.G., defense counsel
contended he had objected to the competency of the youth witness during a sidebar and
that he later learned the sidebar was inaudible and could not be transcribed. Id. at 448.
4 Upon so learning, defense counsel made a motion, with a sworn statement as to the
contents of that sidebar, which was part of the juvenile court’s record. Id. In deciding
D.G., we took a liberal approach, citing precedent for giving the benefit of the doubt in
speculative matters involving unrecorded sidebars. Id. at 449.
Here, however, there was no such unrecorded sidebar. Rather, A.T.’s counsel
made no objection to E.T.’s competency before or during E.T.’s testimony. It was not
until after E.T. had testified that A.T.’s counsel objected. As we have previously held, a
witness, including a child witness, is presumed to be competent to testify, unless the
opponent of the testimony properly raises the issue. Aldridge, 779 N.E.2d at 609. By not
timely objecting to E.T.’s testimony, A.T. has waived his witness-competency argument.
II. Exclusion of Late-Disclosed Witnesses
A.T. next contends that the juvenile court erred when it excluded testimony from
two potential witnesses. The trial court has inherent discretionary power on the
admission of evidence, and its decisions are reviewed only for an abuse of that discretion.
Vasquez v.
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Sep 24 2013, 5:34 am
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JOEL M. SCHUMM GREGORY F. ZOELLER Indianapolis, Indiana Attorney General of Indiana
J.T. WHITEHEAD Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
A.T., ) ) Appellant-Defendant, ) ) vs. ) No. 49A02-1212-JV-980 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT The Honorable Marilyn A. Moores, Judge The Honorable Geoffrey A. Gaither, Magistrate Cause No. 49D09-1206-JD-1776
September 24, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
KIRSCH, Judge A.T. appeals an adjudication finding him to be a delinquent child for committing
child molesting,1 an act that would be a Class C felony if committed by an adult. A.T.
raises two issues for our review, which we restate as follows:
I. Whether the juvenile court erred in overruling A.T.’s objection to a nine-year-old victim’s testimony; and
II. Whether the juvenile court erred in excluding the testimony of two late-disclosed witnesses.
We affirm.
FACTS AND PROCEDURAL HISTORY
The facts most favorable to the juvenile court’s delinquency determination are that
in 2011, A.T., a juvenile, lived with his mother, her boyfriend, and her boyfriend’s two
daughters, K.T. and E.T. When E.T. was in the second grade, she learned about good
touches and bad touches through an elementary school program. At the conclusion of the
program, E.T. signed a card indicating that she had received a bad touch. It happened
when she entered A.T.’s bedroom, where he was playing a game. A.T. was sitting up in
front of the television on his bed and he touched her “butt” with his “private.” E.T.
testified that she was wearing clothes at the time. Tr. at 38-49.
On July 2, 2012, the State charged A.T. with child molesting, an act that would be
a Class C felony if committed by an adult. A.T. was also charged with three other
offenses, which were eventually dismissed.
The juvenile court held a denial hearing on October 23, 2012. At the outset of the
hearing, A.T. moved to add two new witnesses. Defense counsel, Harold Thurston
1 See Ind. Code § 35-42-4-3.
2 (“Thurston”), had learned about the new witnesses two days before the hearing, on a
Sunday, and had notified the State the next day. However, the State’s prosecutor, who
had been in court all day, did not receive Thurston’s message until Monday afternoon.
During the denial hearing, Thurston stated that the witnesses purportedly had lived with
A.T. and E.T. at the time of the allegations. Additionally, Thurston offered that, although
he had not yet interviewed the new witnesses, they would testify about the veracity of
E.T. and about A.T.’s relationship with her. Thurston moved to add the witnesses, the
State moved to exclude them, and the trial court granted the State’s motion.
During A.T.’s hearing, the State presented its evidence, including testimony from
E.T. After the State had rested, Thurston argued that E.T.’s testimony was inadmissible
because her competency had not been established. At the time of the hearing, E.T. was
nine years old. The court overruled the objection, finding it untimely.
At the conclusion of the denial hearing, the juvenile court entered a true finding.
A.T. now appeals.
DISCUSSION AND DECISION
A.T. raises two arguments. First, he contends that his true finding of child
molesting should be reversed because, as a foundational matter, neither the State nor the
juvenile court asked any questions to establish the competence of the nine-year-old
victim, E.T. Next, A.T. contends that the trial court abused its discretion when it
excluded his two late-disclosed witnesses.
I. Competence of E.T.
Indiana Evidence Rule 601 provides, “Every person is competent to be a witness
3 except as otherwise provided by these rules or by act of the Indiana General Assembly.”
In interpreting and applying Evidence Rule 601, we have observed that the rule’s failure
to presumptively exclude children does not prohibit special inquiry into their competency
prior to testifying when the issue is raised by the defendant. Burrell v. State, 701 N.E.2d
582, 584 (Ind. Ct. App. 1998); see also Aldridge v. State, 779 N.E.2d 607, 609 (Ind. Ct.
App. 2002) (noting that the current witness-competency statute “assumes competency
until otherwise demonstrated by the opponent of the testimony.”); Harrington v. State,
755 N.E.2d 1176, 1180-81 (Ind. Ct. App. 2001).
A determination of a witness’s competency lies within the sound discretion of the
trial court, and we review only for a manifest abuse of that discretion. Aldridge, 779
N.E.2d at 609. When the presumption of competence is rebutted, “[a] child’s
competency to testify at trial is established by demonstrating that he or she (1)
understands the difference between telling a lie and telling the truth, (2) knows he or she
is under a compulsion to tell the truth, and (3) knows what a true statement actually is.”
D.G. v. State, 947 N.E.2d 445, 448 (Ind. Ct. App. 2011) (citing Kien v. State, 866 N.E.2d
377, 385 (Ind. Ct. App. 2007), trans. denied).
In support of his argument opposing E.T.’s competency, A.T. points to D.G.,
where we reversed a true finding for child molesting because “neither the trial court nor
counsel conducted any inquiry” into the elements of competency listed above. 947
N.E.2d at 449. The present matter is distinguishable. In D.G., defense counsel
contended he had objected to the competency of the youth witness during a sidebar and
that he later learned the sidebar was inaudible and could not be transcribed. Id. at 448.
4 Upon so learning, defense counsel made a motion, with a sworn statement as to the
contents of that sidebar, which was part of the juvenile court’s record. Id. In deciding
D.G., we took a liberal approach, citing precedent for giving the benefit of the doubt in
speculative matters involving unrecorded sidebars. Id. at 449.
Here, however, there was no such unrecorded sidebar. Rather, A.T.’s counsel
made no objection to E.T.’s competency before or during E.T.’s testimony. It was not
until after E.T. had testified that A.T.’s counsel objected. As we have previously held, a
witness, including a child witness, is presumed to be competent to testify, unless the
opponent of the testimony properly raises the issue. Aldridge, 779 N.E.2d at 609. By not
timely objecting to E.T.’s testimony, A.T. has waived his witness-competency argument.
II. Exclusion of Late-Disclosed Witnesses
A.T. next contends that the juvenile court erred when it excluded testimony from
two potential witnesses. The trial court has inherent discretionary power on the
admission of evidence, and its decisions are reviewed only for an abuse of that discretion.
Vasquez v. State, 868 N.E.2d 473, 476 (Ind. 2007) (citing Jones v. State, 780 N.E.2d 373,
376 (Ind. 2002)). Although wide discretion is given to the trial court, the trial court must,
in making its decisions, “give substantial weight to a defendant’s constitutional rights,
here the right to compulsory process under the Sixth Amendment to the U.S. Constitution
and Art. 1, § 13 of the Indiana Constitution.” Id. Indeed, “Indiana jurisprudence
recognizes a strong presumption to allow defense testimony, even of late-disclosed
witnesses: ‘The most extreme sanction of witness exclusion should not be employed
unless the defendant’s breach has been purposeful or intentional or unless substantial and
5 irreparable prejudice would result to the State.’” Id. (quoting Wiseheart v. State, 491
N.E.2d 985, 991 (Ind. 1986)).
An erroneous exclusion of evidence does not require reversal, however, if the
probable impact on the jury, in light of all of the evidence in the case, is sufficiently
minor so as not to affect the defendant’s substantial rights. Id. at 477; see, e.g., Williams
v. State, 714 N.E.2d 644, 652 (Ind. 1999) (finding that exclusion of witness’s testimony
was harmless error where DNA and other evidence connected defendant to crime); Farris
v. State, 818 N.E.2d 63, 70 (Ind. Ct. App. 2004) (finding exclusion of potential witness
harmless where there was uncertainty about what witness would testify about and where
evidence against defendant was otherwise strong).
As both parties have identified, our Supreme Court has provided factors that are
helpful in determining whether to exclude a witness:
(i) when the parties first knew of the witness; (ii) the importance of the witness’s testimony; (iii) the prejudice resulting to the opposing party; (iv) the appropriateness of lesser remedies such as continuances; and (v) whether the opposing party would be unduly surprised and prejudiced by the inclusion of the witness’s testimony.
Vasquez, 868 N.E.2d at 477 (quoting Williams, 714 N.E.2d at 651 n.5).
The trial court did not err in excluding the two late-disclosed witnesses. The
witnesses were known to A.T. and his family throughout the pendency of this case and
indeed had lived in A.T.’s home when the events giving rise to this action occurred, but
the witnesses were not disclosed to State until the day before the Denial Hearing and well
after discovery had been completed. The complaining witness, her sister and their
mother had travelled to Indianapolis from Detroit, Michigan for the Denial Hearing, and
6 a continuance or a bifurcation of the hearing would have been burdensome to them. The
State had no opportunity to depose or take statements from the witnesses prior to the
hearing. Although A.T.’s counsel indicated that the witnesses would testify as to the
veracity of the victim, counsel had not yet interviewed the witnesses and referenced no
specific incidents or circumstances about which the witnesses would testify. In
reviewing the record, we cannot say whether the witnesses would have supported A.T.’s
defense. The trial court did not abuse its discretion in excluding A.T.’s two proffered
witnesses.
Affirmed.
VAIDIK, J., and PYLE, J., concur.