Fox v. State, No. 1-780A166

Docket NºNo. 1-780A166
Citation413 N.E.2d 665
Case DateDecember 18, 1980
CourtCourt of Appeals of Indiana

Page 665

413 N.E.2d 665
Albert A. FOX, Jr., Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below).
No. 1-780A166.
Court of Appeals of Indiana, First District.
Dec. 18, 1980.

Harriette Bailey Conn, Public Defender, Kurt A. Young, Deputy Public Defender, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Thomas D. Quigley, Deputy Atty. Gen., Indianapolis, for appellee.

Page 666

ROBERTSON, Presiding Judge.

Defendant-appellant Fox appeals his conviction of attempted child molesting (Ind.Code 35-42-4-3(a) and Ind.Code 35-41-5-1) by arguing six alleged errors. We affirm.

I

Fox first argues that it was error in permitting the mother of the victim to testify about an incident occurring five years before the trial. The testimony related to an incident of sexual abuse by Fox of his then eighteen month old half-sister who was also the victim in this case.

This issue of admissibility was discussed in the recent child molesting case of Omans v. State, 412 N.E.2d 305 (Ind.1980) 1 where Judge Hoffman stated at page 311:

Generally, evidence of criminal activity other than that charged is inadmissible on the question of guilt. Cobbs v. State, (1975) 264 Ind. 60, 338 N.E.2d 632. Yet it is now settled that such evidence is freely admitted to show depraved sexual instinct when sodomy, incest or a similar offense is charged. Gilman v. State, (1972) 258 Ind. 556, 282 N.E.2d 816. The basis for this exception is that in prosecutions for depraved acts the complaining witness is not likely to be believed inasmuch as the evidence standing alone and entirely unconnected with anything which led to or brought it about would appear unnatural or improbable in itself. Grey v. State, (1980) Ind., 404 N.E.2d 1348. Thus acts tending to indicate a depraved sexual instinct are admissible subject only to exclusion for remoteness. Bowen v. State, (1975) 263 Ind. 558, 334 N.E.2d 691.

Insofar as the matter of remoteness is concerned:

We also note that the trial court has wide discretion regarding the exclusion of evidence for remoteness. Austin v. State, ((1974) 262 Ind. 529, 319 N.E.2d 130) supra. That substantial time had passed goes to the weight of the evidence but does not render it inadmissible. See, Garr v. State, (1967), 248 Ind. 295, 227 N.E.2d 171.

Grey v. State, (1980) Ind., 404 N.E.2d at 1353.

II

Fox next alleges error in allowing the six year old victim to testify at the trial. We are of the opinion that Johnson v. State, (1977) 265 Ind. 689, 359 N.E.2d 525 is dispositive of the issue. There it was held that the statutory imposition of incompetency (IC 34-1-14-5) for witnesses less than ten years of age is removed if:

the trial court can find: (1) that the child knows the difference between telling the truth and telling a lie and (2) that the child realizes that he or she is under some compulsion to tell the truth. The compulsion to tell the truth need not be fear of punishment. (Footnote omitted).

We, therefore, entrust this determination to the discretion of the trial court and will reverse only where we find clear error, where there is no evidence from which the trial court could have found that the child understood the nature and obligation of the oath. (Citations omitted).

359 N.E.2d at 528.

The transcript shows that the trial judge examined this witness out of the jury's presence to...

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5 practice notes
  • McNeely v. State, No. 74A01-8802-CR-61
    • United States
    • Indiana Court of Appeals of Indiana
    • November 3, 1988
    ...us that this instruction has also been approved in Feggins v. State (1977), 265 Ind. 674, 359 N.E.2d 517; Fox v. State (1980), Ind.App., 413 N.E.2d 665; Seay v. State (1976), 168 Ind.App. 252, 342 N.E.2d 879; and Presley v. State (1972), 152 Ind.App. 637, 284 N.E.2d 526. In each of these ca......
  • Newton v. State, No. 2-283A65
    • United States
    • Indiana Court of Appeals of Indiana
    • November 29, 1983
    ...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 competency to perceive, to remember and to narrate is required only if the child's mental competency i......
  • McKim v. State, No. 184S42
    • United States
    • Indiana Supreme Court of Indiana
    • April 19, 1985
    ...State, (1980) 273 Ind. 439, 445, 404 N.E.2d 1348, 1352. This Rule was followed by the Court of Appeals in Fox v. State, (1980) Ind.App., 413 N.E.2d 665, and Omans v. State, (1980) Ind.App., 412 N.E.2d 305, trans. The violent, forced sexual intercourse Defendant had with Karen Wigand was sim......
  • Jones v. State, No. 1182S411
    • United States
    • Indiana Supreme Court of Indiana
    • June 29, 1984
    ...to tell the truth need not be fear of punishment. Johnson v. State, (1977) 265 Ind. 689, 359 N.E.2d 525; Fox v. State, (1980) Ind.App., 413 N.E.2d 665, The trial court found the five year old daughter to be a competent witness. The portion of the competency hearing, which was the basis of t......
  • Request a trial to view additional results
5 cases
  • McNeely v. State, No. 74A01-8802-CR-61
    • United States
    • Indiana Court of Appeals of Indiana
    • November 3, 1988
    ...us that this instruction has also been approved in Feggins v. State (1977), 265 Ind. 674, 359 N.E.2d 517; Fox v. State (1980), Ind.App., 413 N.E.2d 665; Seay v. State (1976), 168 Ind.App. 252, 342 N.E.2d 879; and Presley v. State (1972), 152 Ind.App. 637, 284 N.E.2d 526. In each of these ca......
  • Newton v. State, No. 2-283A65
    • United States
    • Indiana Court of Appeals of Indiana
    • November 29, 1983
    ...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 competency to perceive, to remember and to narrate is required only if the child's mental competency i......
  • McKim v. State, No. 184S42
    • United States
    • Indiana Supreme Court of Indiana
    • April 19, 1985
    ...State, (1980) 273 Ind. 439, 445, 404 N.E.2d 1348, 1352. This Rule was followed by the Court of Appeals in Fox v. State, (1980) Ind.App., 413 N.E.2d 665, and Omans v. State, (1980) Ind.App., 412 N.E.2d 305, trans. The violent, forced sexual intercourse Defendant had with Karen Wigand was sim......
  • Jones v. State, No. 1182S411
    • United States
    • Indiana Supreme Court of Indiana
    • June 29, 1984
    ...to tell the truth need not be fear of punishment. Johnson v. State, (1977) 265 Ind. 689, 359 N.E.2d 525; Fox v. State, (1980) Ind.App., 413 N.E.2d 665, The trial court found the five year old daughter to be a competent witness. The portion of the competency hearing, which was the basis of t......
  • Request a trial to view additional results

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