Holder v. State, 878S162

• Court: Supreme Court of Indiana
• Citation: 396 N.E.2d 112,272 Ind. 52
• Docket Number: No. 878S162,878S162
• Parties: Zelmer HOLDER, Appellant, v. STATE of Indiana, Appellee.
• Decision Date: 05 November 1979

Page 112

396 N.E.2d 112 272 Ind. 52 Zelmer HOLDER, Appellant,
v.
STATE of Indiana, Appellee. No. 878S162. Supreme Court of Indiana. Nov. 5, 1979.

[272 Ind. 53]

Page 113

Harriette Bailey Conn, Public Defender, Marcia L. Dumond, David P. Freund, Deputy Public Defenders, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Jeffrey K. Baldwin, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

On September 20, 1977, appellant Zelmer Holder was found guilty by a jury of the crime of rape of a female child under the age of sixteen years, under Ind.Code § 35-13-4-3 (Burns 1975). The information charged that this female child was nine years old. He was sentenced to life imprisonment by the court. Appellant presents four issues for our review, concerning: (1) whether the trial court erred in denying defendant's motion for psychiatric examination of the prosecuting witness; (2) whether the trial court erred in determining that the nine year-old prosecuting witness was competent to testify; (3) the sufficiency of the evidence; and (4) whether the defendant was properly sentenced under the penalty provision of Ind.Code § 35-13-4-3 (Burns 1975), rather than under the new penal code, which became effective October 1, 1977.

I.

The prosecutrix in this case was a nine year-old female child. She was left with appellant and his wife while her parents went to a funeral home. Appellant's wife left the house for about fifteen or twenty minutes, and it was during this period that the incident occurred. Appellant moved the trial court to order a psychiatric examination of prosecuting witness K. D. to determine her competency as a witness. The trial court denied the motion and refused to order the examination.

In Easterday v. State, (1970) 254 Ind. 13, 256 N.E.2d 901, this Court clearly held that a defendant has no right to subject a prosecuting witness, in a trial on a sex offense, to a psychiatric examination. The Court can order such an examination where, in its sound discretion, it determines one to be necessary. See Wedmore v. State, (1957) 237 Ind. 212, 143 N.E.2d 649. Appellant claims that [272 Ind. 54] the trial court abused its discretion and committed reversible error when it denied defendant's motion for examination of the prosecutrix in this case. His sole basis for this contention is found in the witness' use, during her testimony, of slang terms which commonly identify the human genitals and the act of intercourse.

We will not disturb the trial court's ruling on this question except upon a clear showing of an abuse of discretion. Easterday v. State, supra. Following Easterday, the Court of Appeals in Allen v. State, (1972) 152 Ind.App. 284, 283 N.E.2d 557, found that a court-ordered psychiatric examination to determine the competency of a witness was proper, but that a court's refusal to grant an examination in order to determine a witness' Credibility was not error. Again, in Borosh v. State, (1975) 166 Ind.App. 378, 336 N.E.2d 409, the Court of Appeals found that no error occurred where the trial court refused to order a psychiatric examination of the prosecutrix.

In Easterday v. State, supra, the trial court abused its discretion when it refused to order an examination, where evidence showed that the prosecutrix had implicated other men in acts of sexual misconduct and had admitted telling stories of the nature for which the defendant was being tried. In the case at bar, there was no evidence on which to predicate a motion for psychiatric examination. The age of the witness does not, of itself, necessarily obligate the court to order an...