Bowers v. State, No. 3-1281A317

Docket NºNo. 3-1281A317
Citation435 N.E.2d 309
Case DateMay 26, 1982
CourtCourt of Appeals of Indiana

Page 309

435 N.E.2d 309
David A. BOWERS, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below).
No. 3-1281A317.
Court of Appeals of Indiana, Third District.
May 26, 1982.

Page 310

Thomas L. Ryan, Fort Wayne, for appellant.

Linley E. Pearson, Atty. Gen., Palmer K. Ward, Deputy Atty. Gen., Indianapolis, for appellee.

STATON, Judge.

David A. Bowers was convicted by the trial court of child molesting, a class B felony. 1 He received a six year determinate sentence. On appeal, he raises the following issues: 2

(1) Did the trial court err by admitting the victim's testimony?

(2) Is the judgment supported by sufficient evidence?

We affirm.

I.

Competency

The molested child, a foster daughter of David Bowers, testified that Bowers had her commit fellatio on him numerous times in their home. She was seven years old when the sexual acts occurred; however, she was eight and a half years old when she testified at Bowers's trial. Bowers challenges her testimony by arguing that her age rendered her an incompetent witness.

Ind.Code 34-1-14-5 provides that children under ten years of age are not competent witnesses, unless it appears that they understand the nature and the obligation of an oath. The determination of the competency of a child under the age of ten years lies within the discretion of the trial court. When the trial court has the opportunity to observe the maturity, intelligence, and the demeanor of the child, we review only for an abuse of discretion. Buttram v. State (1978), 269 Ind. 598, 382 N.E.2d 166; Bennett v. State (1980), Ind.App., 409 N.E.2d 1189, 1191. The determination of competency rests upon the ability of the child to know the difference between truth and falsehood and to understand that by testifying he or she is under a compulsion to tell the truth. Johnson v. State (1977), 265 Ind. 689, 359 N.E.2d 525, 528.

Page 311

Our review of the record shows that the trial court thoroughly questioned the eight and a half year old girl before she was allowed to testify. This voir dire examination revealed that she understood the difference between truth and falsehood, as well as her obligation of testifying under oath. The trial court again admonished her before she was cross-examined. We conclude the trial court acted properly by permitting her to testify.

II.

Sufficiency of Evidence

Bowers contends that the trial court's judgment is supported by insufficient evidence because his foster daughter's...

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3 practice notes
  • Newton v. State, No. 2-283A65
    • United States
    • Indiana Court of Appeals of Indiana
    • November 29, 1983
    ...of the nature and obligation of the oath. See Staton v. State, (1981) Ind., 428 N.E.2d 1203; Bowers v. State, (1982) Ind.App., 435 N.E.2d 309; Bennett v. State, (1980) Ind.App., 409 N.E.2d 1189; Fox v. State, (1980) Ind.App., 413 N.E.2d 665. The further probe into a child's mental competenc......
  • Linder v. State, No. 483S132
    • United States
    • Indiana Supreme Court of Indiana
    • December 2, 1983
    ...maturity and intelligence of the child, the court will review only for an abuse of discretion. Bowers v. State, (1982) Page 404 Ind.App., 435 N.E.2d 309. The test for this determination "whether the child understood the difference between telling a lie and telling the truth; and whether the......
  • Tipmont Rural Elec. Membership Corp. v. Fischer, No. 61A05-9604-CV-135
    • United States
    • Indiana Court of Appeals of Indiana
    • July 9, 1998
    ...instruction. The objection was too general and indefinite to constitute a proper objection pursuant to T.R. 51(C). See Poor Sisters, 435 N.E.2d at 309. As a result, Tipmont failed to preserve the issue for review on appeal. See Johnson, 557 N.E.2d at The final question relating to the damag......
3 cases
  • Newton v. State, No. 2-283A65
    • United States
    • Indiana Court of Appeals of Indiana
    • November 29, 1983
    ...of the nature and obligation of the oath. See Staton v. State, (1981) Ind., 428 N.E.2d 1203; Bowers v. State, (1982) Ind.App., 435 N.E.2d 309; Bennett v. State, (1980) Ind.App., 409 N.E.2d 1189; Fox v. State, (1980) Ind.App., 413 N.E.2d 665. The further probe into a child's mental competenc......
  • Linder v. State, No. 483S132
    • United States
    • Indiana Supreme Court of Indiana
    • December 2, 1983
    ...maturity and intelligence of the child, the court will review only for an abuse of discretion. Bowers v. State, (1982) Page 404 Ind.App., 435 N.E.2d 309. The test for this determination "whether the child understood the difference between telling a lie and telling the truth; and whether the......
  • Tipmont Rural Elec. Membership Corp. v. Fischer, No. 61A05-9604-CV-135
    • United States
    • Indiana Court of Appeals of Indiana
    • July 9, 1998
    ...instruction. The objection was too general and indefinite to constitute a proper objection pursuant to T.R. 51(C). See Poor Sisters, 435 N.E.2d at 309. As a result, Tipmont failed to preserve the issue for review on appeal. See Johnson, 557 N.E.2d at The final question relating to the damag......

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