Finchum v. State, No. 1-1283A374

• Docket Nº: No. 1-1283A374
• Citation: 463 N.E.2d 304
• Case Date: May 15, 1984
• Court: Court of Appeals of Indiana

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463 N.E.2d 304 Jerry FINCHUM, Defendant-Appellant,
v.
STATE of Indiana, Plaintiff-Appellee. No. 1-1283A374. Court of Appeals of Indiana,
First District. May 15, 1984.

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Joseph B. Barker, Martinsville, for defendant-appellant.

Linley E. Pearson, Atty. Gen., Richard Albert Alford, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

NEAL, Presiding Judge.

STATEMENT OF THE CASE

Defendant-appellant Jerry Finchum (Finchum), was convicted by the Morgan Superior Court without the intervention of a jury, of the offense of child molesting under IND.CODE 35-42-4-3(b), a class C felony. The trial court imposed a five year sentence of which all but six months was suspended. Finchum appeals.

We affirm.

STATEMENT OF THE FACTS

The evidence most favorable to support the conviction is as follows: Finchum, age 19, was employed to babysit in Finchum's home with three children, S.M., age 7, C.M., age 5, and B.M., age 4, by their mother,

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L.M. L.M. had known Finchum for about six years and had hired him to babysit over a span of five and one-half years, while she worked. S.M., a boy, testified first for the state after the court had conducted a competency examination of him. This examination included questions by counsel, and went to his age, schooling, mentality, knowledge of truth, and perception of right and wrong. No objection was made by Finchum to S.M.'s competency.

The child testified that after Finchum gave the three of them baths, they went to bed in Finchum's room. S.M. and B.M., the boys, slept in a chair and C.M., a girl, was put in Finchum's bed. Finchum got in bed with C.M. and pulled a sheet over them. C.M. was dressed in a T-shirt and panties, while Finchum only had on gym shorts. Though the lights were out, the door was open sufficiently to let in light so that S.M. could see. He heard wiggling noises made by the bed, and heard C.M. crying "because she didn't want Jerry to do it". Jerry punched the wall with his fist leaving a hole and was heard to say to C.M., "I'm sorry". S.M. characterized the activity as "playing nasty". He could not articulate exactly what "playing nasty" was, but it included people getting on top of each other.

L.M., the mother, testified that to the child, "playing nasty" had sexual connotations and involved playing with the genitalia of the opposite sex. She stated that the next day the children acted sufficiently strange that it prompted her to ask what was wrong. S.M. told her. C.M. was afraid of Jerry and the bedroom. She examined C.M. and found the area around her vagina red and galled. She then called the police. Upon their questioning of Finchum, he admitted he had molested and fondled C.M., but did not rape her.

ISSUES

Finchum presents two issues for review:

I. Whether there was sufficient evidence to establish the corpus delecti apart from the confession and did the State establish specific intent by probative evidence.

II. Did the court err in admitting Finchum's confession.

DISCUSSION AND DECISION

Issue I: Sufficiency of the evidence.

IND.CODE 35-42-4-3(b) provides as follows:

"A person who, with a child under twelve (12) years of age, performs or submits to any fondling or touching of either the child or the older person, with intent to arouse or to satisfy the sexual desires of either the child or the older person ... (Emphasis added)."

Finchum's argument, as stated in his brief, is that the State has a "burden ... to establish the corpus delicti by evidence of specific intent", and that the State failed to establish the corpus delicti because "the State based its showing of the corpus delicti, as to the overt act itself upon the foregoing evidence" (recited in the Statement of Facts). Though it is not at all clear, we think his argument proceeds thusly: that the State must prove Finchum's guilt by evidence independent of the confession, that each element of the offense must be proven beyond a reasonable doubt, and that the State has failed to do so.

Finchum does not now, nor did he at trial, contest S.M.'s competency to testify. See IND.CODE 34-1-14-5; IND.CODE 35-1-31-3; Newton v. State, (1983) Ind.App., 456 N.E.2d 736 (7-year old prosecutrix in a molesting case). Second, Finchum raised no issue at trial relative to the corpus delicti, and such failure could result in a waiver of that issue. Spright v. State, (1970) 254 Ind. 420, 260 N.E.2d 770. Thirdly, Finchum is mistaken as to the office of corpus delicti as bearing on the sufficiency of the evidence.

We assume, without deciding, that for the purpose of determining the sufficiency of the evidence, a confession must be supported by independent corroborative evidence, or corpus delicti Hayden v. State, (1964) 245 Ind. 591, 199 N.E.2d

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102. Corpus delicti merely means the occurrence of some specific injury and that someone's criminality was involved. In proving the corpus delicti it is not necessary to make out a prima facie case as to each element of the crime beyond a reasonable doubt. Jones v. State, (1969) 253 Ind. 235, 252 N.E.2d 572. The proof need not be full and conclusive, and the rule is not to be confused with the requirement that the state prove all of the elements of the crime charged beyond a reasonable doubt. Hayden v. State, supra. The corroborative evidence is to be considered together with the confession to determine whether the offense is proven beyond a reasonable doubt. Dunbar v. State, (1961) 242 Ind. 161, 177 N.E.2d 452. More specifically, in answer to Finchum's argument about intent, the State is not required to independently prove the mental elements of a particular crime if the defendant has given a confession which admits them. Jones v. State, supra.

Our standard of review does not permit us to reweigh the evidence or re-determine the credibility of witnesses. Newton v. State, supra. A conviction may be sustained on the uncorroborated evidence of a single witness, even if such witness is a minor. Smith v. State, (1982) Ind., 432 N.E.2d 1363; Newton v. State, supra. Specific intent may be inferred from all of the circumstances. Best v. State, (1981) Ind.App., 418 N.E.2d 316. We conclude that the corroborating, independent evidence presented by S.M. is sufficient to establish the corpus delicti, and that the evidence as a whole, including the confession, supports the conclusion of guilt beyond a reasonable doubt.

Issue II: Confession.

Finchum challenges the admission into evidence of his taped confession on the basis of denial of due process, right of counsel, failure to advise him of his constitutional rights, and incompetency. The core of his argument is his mental incapacity. The State presented evidence that officer Mason, who interviewed Finchum and took his taped statement, knew Finchum for years. He stated that Finchum was capable of long and lucid conversations. He knew Finchum was handicapped, but the problem was mostly...