Aldridge v. State, 39A01-0203-CR-87.

• Decision Date: 09 December 2002
• Docket Number: No. 39A01-0203-CR-87.,39A01-0203-CR-87.
• Citation: 779 N.E.2d 607
• Parties: Robert Ray ALDRIDGE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

779 N.E.2d 607

Robert Ray ALDRIDGE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 39A01-0203-CR-87.

Court of Appeals of Indiana.

December 9, 2002.

Transfer Denied February 20, 2003.

Mark Wynn, Madison, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

HOFFMAN, Senior Judge.

Defendant-Appellant Robert Ray Aldridge appeals his conviction of child molesting, a Class A felony. We affirm.

Aldridge raises one issue for our review, which we restate as: whether the trial court abused its discretion in overruling Aldridge's objection, based on competency, to the testimony of two child witnesses.

In April of 2000, the victim's mother ("Mother") observed the four-year-old victim simulate a sex act with another child. Mother asked the victim about her behavior, and the victim told her that she had learned the behavior from her father and a man named "Bob." Aldridge, the victim's neighbor and a friend of the victim's father, was later identified as the "Bob" referred to by the victim.

Mother contacted the Jefferson County Division of Family and Children, which subsequently contacted the Indiana State Police. An investigation by these two entities revealed that the victim's five-year-old brother ("Brother") had witnessed Aldridge committing a sexual act with the victim. Aldridge was subsequently arrested and charged with two counts of child molesting.

At trial, the State called both Brother (then six-years-old) and the victim (then five-years-old) as witnesses. The trial court allowed the two to testify over Aldridge's objection that neither was competent. Aldridge was convicted on both counts, and after the trial court merged the convictions, he was sentenced on his conviction of child molesting, a Class A felony.

On appeal, Aldridge contends that the trial court abused its discretion in allowing the two children to testify. He alleges that neither child was competent to do so.

A determination of a witness's competency lies within the sound discretion of the trial court and is reviewable only for a manifest abuse of that discretion. Burrell v. State, 701 N.E.2d 582, 584-85 (Ind.Ct. App.1998). A child under ten years old was formerly presumed to be incompetent to testify, but the statute setting forth the presumption was repealed in 1990. Id. at 585. Instead, Indiana Evidence Rule 601 now applies. It states that "[e]very person is competent to be a witness except as otherwise provided in these rules or by act of the Indiana General Assembly."

We have previously held that Rule 601's "failure to presumptively exclude children does not prohibit special inquiry into their competency prior to testifying when the issue is raised by a defendant." Id. The rule "read in conjunction with the repeal of the subdivision regarding children in the witness competency statute, abandoned the previous arbitrary lines drawn regarding age, in favor of a rule which assumes competency until otherwise demonstrated by the opponent of the testimony." Id. (citing Newsome v. State, 686 N.E.2d 868, 877-78 (Ind.Ct.App.1997) (Hoffman, J., concurring in result)).¹

Our review of the trial transcript leads us to the conclusion that the trial court did not abuse its discretion in overruling Aldridge's objection that Brother was incompetent to testify at trial. Brother, in answer to the trial court's inquiries, stated that it was the truth to call a red item "red" and that it was not the truth to call a red item "green." He subsequently acknowledged that he was required to tell the truth when asked questions by the prosecutor and defense counsel. He then stated, in answer to two separate inquiries by the trial court, that he was going to tell the truth. On direct examination, Brother gave a straightforward account of Aldridge's molestation of his sister. On cross-examination, although confused by some of defense counsel's terminology, he gave no indication that he did not understand the truth. He followed cross-examination with a reaffirmation that he had told the truth on direct examination....