Carter v. State

• Decision Date: 11 August 1980
• Docket Number: No. 2-178A5,2-178A5
• Citation: 408 N.E.2d 790
• Parties: William B. CARTER, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 790

408 N.E.2d 790

William B. CARTER, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 2-178A5.

Court of Appeals of Indiana, Second District.

Aug. 11, 1980.

Ernie Burke, Indianapolis, for appellant.

Theo. L. Sendak, Atty. Gen., Elmer Lloyd Whitmer, Deputy Atty. Gen., Indianapolis, for appellee.

SHIELDS, Judge.

Defendant-appellant William B. Carter was charged in a two-count indictment with the offenses of sodomy ¹ and rape ² and, after a bench trial, was convicted of sodomy and assault and battery with intent to gratify sexual desires. ³ In this appeal, Carter raises the following issues within the context of a general sufficiency of the evidence argument: ⁴

(1) the competency of the seven (7) year old female victim to testify;

(2) whether the trial court erred in permitting the victim's parents to remain in the courtroom during her testimony;

(3) the sufficiency of the uncorroborated testimony of the victim;

(4) the sufficiency of Carter's evidence that he was intoxicated to an extent he did not have any criminal intent; and

(5) the sufficiency of the evidence, generally, to support both convictions.

I

Carter first contends the trial court erroneously determined the prosecutrix, W.G., was competent to testify. We observe, however, that Carter did not make an objection at trial to the competency of the seven (7) year old victim to testify. The failure to make a timely objection to testimony at trial operates as a waiver on appeal. Gutierrez v. State, (1979) Ind., 395 N.E.2d 218.

Moreover, assuming the issue was properly preserved for our review, we find no error. The determination of the competency of a child under the age of ten (10) years lies within the sound discretion of the trial court. When the trial court has the opportunity to observe the maturity, intelligence, and demeanor of the child, we review only for an abuse of discretion. Buttram v. State, (1978) Ind., 382 N.E.2d 166. The determination of competency rests upon the ability of the child to know the difference between truth and falsehood and to understand that he or she, by testifying, is under a compulsion to tell the truth. Johnson v. State, (1977) 265 Ind. 689, 359 N.E.2d 525.

A review of the record in this cause shows the trial judge thoroughly questioned the prosecutrix. This examination revealed the witness understood the difference between truth and falsehood, as well as the obligation of testifying under oath. We do not find an abuse of discretion in permitting the seven (7) year old victim to testify.

II

The State moved for, and was granted, a separation of witnesses prior to the introduction of any evidence. The first witness to testify was the mother of the prosecutrix. Immediately before the prosecutrix was called as the second witness, the State asked the court to close the courtroom during her testimony. Carter's counsel stated he had no objection to that procedure, nor does he raise one on appeal. When, however, the State asked that the prosecutrix's parents be allowed to remain, Carter objected, "because I think they might be trying to prompt the child" and "might exert some influence on her testimony." The trial court overruled Carter's objections and the parents remained in the courtroom during the prosecutrix's testimony.

On appeal, Carter argues it was improper for the prosecutrix to testify in her parents' presence and the trial court further erred in permitting the parents to remain in the courtroom in violation of the separation of witnesses order.

As to the first allegation, Carter does not point to any improper conduct by the parents during their daughter's testimony; nor does he cite any authority or any persuasive argument in support of his position. We hold, therefore, the trial court did not err in permitting the parents to remain in the courtroom during the prosecutrix's testimony. See Dixon v. State, (1976) 264 Ind. 651, 348 N.E.2d 401.

Carter's reliance on a violation of the separation of witnesses order must also fall. In the first instance, such objection was not made at trial and is, therefore, waived. Furthermore, the principal purpose of a separation of witnesses order is to prevent witnesses from hearing the testimony and questioning of other witnesses. In this case the prosecutrix was not present during her mother's testimony; the mother testified prior to her daughter, the prosecutrix, and was not recalled. The prosecutrix's father did not testify. There was therefore, at most a technical violation of the trial court's separation of witnesses order which was not prejudicial to Carter.

III

Contrary to Carter's contention, "a conviction of assault and battery with intent to gratify sexual desires may be sustained on the uncorroborated testimony of the prosecuting witness, even when such witness is a minor." Smith v. State, (1978) Ind.App., 372 N.E.2d 511, 516. See Scales v. State, (1975) 165 Ind.App. 588, 333 N.E.2d 814. Moreover, Carter erroneously concludes the victim's testimony was uncorroborated. The prosecutrix's mother testified to a telephone conversation between herself and Carter in which he admitted the act of cunnilingus on the victim. This evidence is corroborative of the victim's testimony. Furthermore, this portion of the mother's testimony was corroborated by the grand jury testimony of Carter's wife, admitted as substantive evidence in the trial below pursuant to Patterson v. State, (1975) 263 Ind. 55, 324 N.E.2d 482.

IV

Carter next contends he was unable, due to his drunkenness, to entertain the requisite criminal intent. The threshold question, however, is whether voluntary intoxication is a defense to the offenses of which Carter was convicted:

"(V)oluntary intoxication is not normally a defense in a criminal proceeding. In order for intoxication to relieve a defendant from responsibility, the crime charged must have involved specific intent, and the defendant must have been so intoxicated as to be incapable of entertaining the required specific intent."

Greider v. State, (1979) Ind., 385 N.E.2d 424, 426 (emphasis added). See Williams v. State, (1979) Ind., 393 N.E.2d 149; Patterson v. State, (1978) 267 Ind. 515, 371 N.E.2d 1309; James v. State, (1976) 265 Ind. 384, 354 N.E.2d 236; Stout v. State, (1974) 262 Ind. 538, 319 N.E.2d 123; Anderson v. State, (1978) Ind.App., 380 N.E.2d 606.

Thus, case law has developed an indirect defense ⁵ in regard to an intoxicated offender that is inextricably intertwined with the concept of mens rea ; the applicability of said defense depending upon whether the charged offense requires a "specific intent" in addition to a "general intent." Surprisingly, however, no Indiana decisions have defined the term "specific intent," ⁶ and our courts have often reached divergent results concerning which crimes require a specific intent. ⁷

It is often stated that a crime requires two components; one objective, the performance of the prohibited act, i. e., the actus reus, and the other subjective, the mental component of an offense, i. e., the mens rea. See generally R. Perkins, Criminal Law 743-49 (1969); W. Lafave & A. Scott, Criminal Law § 27, at 191-93 (1972). See also Perkins, A Rationale of Mens Rea, 52 Harv.L.Rev. 905 (1939). Cf. Markiton v. State, (1957) 236 Ind. 232, 139 N.E.2d 440 ("A crime has two components an evil intent coupled with an overt act.") It is, however, somewhat misleading to think in terms of a crime requiring two components, an evil act (actus reus ) and an evil intent (mens rea ); for such concepts developed in an era quite dissimilar to modern society. Modern penal offenses that have evolved are not so easily categorized into the two aforementioned components. Many criminal offenses punish not just the act(s) but the results or nature of act(s), as well as acts committed with knowledge or awareness of certain attendant circumstances.

Similarly, characterization of mens rea as an "evil intent" is also misleading. As noted by Sayre:

"(I)t seems clear that mens rea, the mental factor necessary to prove criminality, has no fixed continuing meaning. The conception of mens rea has varied with the changing underlying conceptions and objectives of criminal justice. At the beginning when the object of criminal administration was to restrict and supplant the blood feud, the mental factor was of importance insofar as it determined the provocative nature of the offense; a malicious burning of another's dwelling house being far more provocative than an accidental one, judges must distinguish between malicious and accidental burnings. Under the dominating influence of the canon law and the penitential books the underlying objective of criminal justice gradually came to be the punishment of evil-doing; as a result the mental factors necessary for criminality were based upon a mind bent on evil-doing in the sense of moral wrong. Our modern objective tends more and more in the direction, not of awarding adequate punishment for moral wrongdoing, but of protecting social and public interests. To the extent that this objective prevails, the mental element requisite for criminality, if not altogether dispensed with, is coming to mean, not so much a mind bent on evil-doing as an intent to do that which unduly endangers social or public interests."

F. B. Sayre, Mens Rea, 45 Harv.L.Rev. 974, 1016-17 (1932).

The concept of mens rea was not universally accepted until the later half of the Seventeenth Century; ⁸ the idea of subjective blameworthiness, apparently, due to the influence of the canon law making inroads into the early English Law around the end of the Twelfth Century. ⁹ The idea that a criminal offense requires some sort of moral blameworthiness or mens rea was, therefore, firmly entrenched in the common law by the mid-Nineteenth Century, when the courts first allowed evidence of the accused's voluntary intoxication to be admitted as an indirect defense.

At early common law,...