Short v. State

564 N.E.2d 553, 1991 Ind. App. LEXIS 3, 1991 WL 1519
CourtIndiana Court of Appeals
DecidedJanuary 10, 1991
Docket49A02-8903-CR-114
StatusPublished
Cited by51 cases

This text of 564 N.E.2d 553 (Short v. State) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Short v. State, 564 N.E.2d 553, 1991 Ind. App. LEXIS 3, 1991 WL 1519 (Ind. Ct. App. 1991).

Opinions

ROBERTSON, Judge.

Forrest D. Short appeals three convictions after a trial before the bench arising out of a sexual assault committed against his five-year-old daughter, S.S. Two of the convictions are for child molest ing, one as a class B (intercourse) and the other as a class C (fondling) felony. The third conviction is for incest as a class D felony. The evidence supports only one touching from which all three convictions flow.2 Short received concurrent sentences of twenty, five, and two years respectively. Short raises two issues, neither of which constitutes reversible error.

FACTS

The evidence most favorable to the judgment indicates that in December of 1987, Short lived in one-half of a double house. On December 12, 1987, his five-year-old daughter, S.S., stayed with him for an overnight visitation. Between 11:00 p.m. that night and 1:80 a.m. the next morning, Short's neighbors in the other half of the double and their guests heard S.S. erying in Short's half of the double. The next day, [556]*556Short's neighbors questioned S.S. who told them that "he hurt me.... [hle made me £-." Later, S.S. told her grandmother that "... my daddy hurt me ... he put his wiener in me and it hurt again and again."

Additional facts are supplied as necessary.

DECISION

I. Whether S.S., the six-year-old prose cuting witness, was properly qualified to testify?

At the time this case was tried, IND. CODE 34-1-14-5 provided that children under ten years of age were not competent to testify "unless it appears that they understand the nature and obligation of an oath." 3 In Russell v. State (1989), Ind., 540 N.E.2d 1222, our supreme court held that the statutory presumption of incompetence is overcome when a child demonstrates 1) she understands the difference between telling a lie and telling the truth, 2) she knows she is under compulsion to tell the truth, and 8) she knows what a true statement actually is. Our supreme court held in Russell that the trial court abused its discretion by qualifying the witness without a sufficient foundation for the third element above. However, the court held the error was harmless because an examination of the entirety of the child's testimony demonstrated she understood what a true statement actually was.

In the case at bar, the trial court qualified S.S. upon the following testimony (pertinent part only):

Q. ... [S.], is it a good thing or is it a bad thing to tell the truth?
A. A good thing.
Q. A good thing. And is it a good thing or a bad thing to tell a lie?
A. A bad thing.
Q. A bad thing. And what happens if you tell Mommy a lie? What does she do?
A. She either sends me to my room or sends me to time out.
Q. Sends you to your room, and what else does she do?
A. Or to time out.
Q. Or to time out. Do you get to watch TV. if you tell a lie?
A. No.
Q. No. Do you get to go out and play if you tell a lie?
A. No.
[[Image here]]
Q. Why do you think it's a bad thing to tell a lie?
A. Because sometimes they might believe you and it won't be right.

The above testimony demonstrates that S.S. understood the difference between a truth and falsehood and that she believed that punishment follows from falsehoods. We hold the above testimony is sufficient to establish that S.S. appreciated the moral content of true and false statements and that she was under compulsion to tell the truth.

However, as in Russell, the trial court in the present case erred by failing to establish that S.S. knew what a true statement actually was. The determination of whether the witness knows what the truth actually is involves a determination of whether the witness knows the difference between truth, other connotations of truth that may not satisfy this element, and fantasy. Id.; Jarrett v. State (1984), Ind., 465 N.E.2d 1097.

However, we hold that, as in Russell, the error is harmless because the missing element in the preliminary determination of the witness's competency was satisfied by her later testimony. During the evidentiary phase of S.S.'s testimony, the following exchange between the prosecutor and S.S. took place:

Q. And what did Daddy tell you? Did Daddy tell you something that wasn't true that time?
A. Yes.
Q. What did he say?
[557]*557A. He said that it wouldn't-
Q. That it wouldn't. That it wouldn't what, honey?
A. It wouldn't hurt, but it did.

The above exchange demonstrates that S.S. could appreciate the truth/reality of pain. Therefore, the error in the qualification of S.S. is harmless. We find no reversible error.

II. Sufficiency

Short attacks various aspects of the sufficiency of the evidence. He argues 1) the evidence is insufficient to show a penetration of S.S.'s vagina by his penis to support the two convictions based on an alleged act of intercourse; 2) the State failed to present evidence that Short committed the touching with the intent to gratify his sexual desires; and 3) no evidence was presented that Short knew that S.S. was his daughter as required to support the incest conviction.

In reviewing the sufficiency of the evidence, we consider the evidence most favorable to the verdict together with all reasonable inferences which may be drawn from that evidence and, if there is substantial evidence of probative value to support each element of the offense, the judgment will be affirmed. Fox v. State (1979), 179 Ind.App. 267, 384 N.E.2d 1159. The reviewing court neither weighs the evidence nor judges the credibility of the witnesses. Traxler v. State (1989), Ind., 538 N.E.2d 268. Substantive evidence of probative value, such as is necessary to support a conviction, has qualities of directness and freedom from uncertainty. - Vunconnon v. State (1970), 254 Ind. 206, 258 N.E.2d 689. The function of an appellate court in a criminal appeal is to determine whether or not evidence of guilt is substantial and of probative value, which requires more than a mere scintilla of evidence. Id. Evidence which only tends to support a conclusion of guilt is insufficient to sustain a conviction, as evidence must support the conclusion of guilt beyond a reasonable doubt. Id.

S.S.'s testimony at trial regarding Short's sexual assault upon her reads as follows in pertinent part:

Q. Good girl. I knew you could. Did Daddy touch you in a place that hurt?
A. Yes.
Q. What do you call that, [S.]?
A. My butt.
Q.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Andrew Seal v. State of Indiana
105 N.E.3d 201 (Indiana Court of Appeals, 2018)
Brian S. Adcock v. State of Indiana
22 N.E.3d 720 (Indiana Court of Appeals, 2014)
Erik Morales v. State of Indiana
19 N.E.3d 292 (Indiana Court of Appeals, 2014)
Cameron Wood v. State of Indiana
Indiana Court of Appeals, 2014
Paul L. Mishler, Jr. v. State of Indiana
Indiana Court of Appeals, 2013
Larry G. Brown v. State of Indiana
Indiana Court of Appeals, 2013
Curtis Porter v. State of Indiana
Indiana Court of Appeals, 2013
Michael Chambers v. State of Indiana
Indiana Court of Appeals, 2013
Fernando Seba v. State of Indiana
Indiana Court of Appeals, 2013
Christopher Smith v. State of Indiana
982 N.E.2d 348 (Indiana Court of Appeals, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
564 N.E.2d 553, 1991 Ind. App. LEXIS 3, 1991 WL 1519, Counsel Stack Legal Research, https://law.counselstack.com/opinion/short-v-state-indctapp-1991.