Holder v. State

Decision Date05 November 1979
Docket NumberNo. 878S162,878S162
Citation396 N.E.2d 112,272 Ind. 52
PartiesZelmer HOLDER, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

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 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 examination. There was no evidence of past conduct of the character of the witness that indicated that an examination was called for. Therefore, we hold the trial court did not abuse its discretion in refusing to require the prosecutrix to undergo the psychiatric examination.

II.

Appellant next argues the trial court erroneously determined that the prosecutrix, K. D., was competent to testify. At the time of this trial, Ind.Code § 34-1-14-5 (Burns 1975) defined those persons who are incompetent to testify:

"(c)hildren under ten (10) years of age, unless it appears that they understand the nature and obligation of an oath."

In interpreting this statute, the Court of Appeals, in Borosh v. State, supra, held:

"Under this statute the testimony of children under the age of ten (10) years is admissible over objection where a voir dire examination of such a witness discloses to the satisfaction of the trial court that the witness has an understanding of 'the nature and obligation of an oath.' "

166 Ind.App. at 381, 336 N.E.2d at 411 (citations omitted). The determination of a trial court in this regard is reviewable only for a manifest abuse of discretion.

The record shows the trial judge thoroughly questioned the prosecutrix. This examination revealed that the witness understood the obligation of testifying under oath. After receiving favorable responses from the prosecutrix, the trial judge found her competent to testify. We do not find that he abused his discretion in doing so. Scales v. State, (1975) 165 Ind.App. 588, 333 N.E.2d 814.

III.

Appellant claims the State failed to prove beyond a reasonable doubt that penetration occurred. It is true that penetration by a penis is an element of the offense of rape, and must be proved beyond a reasonable doubt. However, it is well-settled that, in proving rape, proof of the slightest degree of penetration is sufficient. In fact, the finder of fact may infer penetration from circumstantial evidence such as the physical condition of the victim soon after the incident. Allbritten v. State, (1974) 262 Ind. 452, 453, 317 N.E.2d 854, 855; Garr v. State, (1974) 262 Ind. 134, 137, 312 N.E.2d 70, 71.

We, of course, do not weigh the evidence or judge the credibility of the witnesses. In determining whether the verdict is supported by sufficient evidence this Court looks at the evidence most favorable to the State and the reasonable inferences to be drawn from that evidence. The verdict will not be disturbed if there is substantial evidence of probative value from which the trier of fact could find the defendant guilty beyond a reasonable doubt. Brewer v. State, (1979) Ind., 390 N.E.2d 648, 653; Reutz v. State, (1978) Ind., 373 N.E.2d 152, 156.

The prosecutrix testified that ...

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11 cases
  • State v. R.W.
    • United States
    • New Jersey Supreme Court
    • September 23, 1986
    ...Brewer, 127 Ill.App.3d 306, 82 Ill.Dec. 462, 468 N.E.2d 1242 (1984); Stanton v. State, 428N.E. N.E.2d 1203 (Ind.1981); Holder v. State, 272 Ind. 52, 396 N.E.2d 112 (1979); State v. Gregg, 226 Kan. 481, 602 P.2d 85 (1979); Commonwealth v. Widrick, 392 Mass. 884, 467 N.E.2d 1353 (1984); Commo......
  • Solomon v. State
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    ...sex offense has no right to subject the victim to a psychiatric examination. Page v. State, (1980) Ind., 410 N.E.2d 1304; Holder v. State, (1979) Ind., 396 N.E.2d 112; Easterday v. State, (1970) 254 Ind. 13, 256 N.E.2d 901. Appellant cites Easterday, supra, wherein this Court found that a t......
  • Brown v. State
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    • Indiana Supreme Court
    • February 10, 1984
    ...of the offense of rape and must be proved beyond a reasonable doubt. Ind.Code Sec. 35-41-1-2 (Burns 1979 Repl.). Holder v. State, (1979) 272 Ind. 52, 396 N.E.2d 112. Likewise, each specific act of deviate sexual conduct involves "an act of sexual gratification involving a sex organ of one p......
  • Staton v. State
    • United States
    • Indiana Supreme Court
    • December 4, 1981
    ...in a sex offense case, to subject the victim to a psychiatric examination. Page v. State, (1980) Ind. 410 N.E.2d 1304; Holder v. State, (1979) Ind. 396 N.E.2d 112. While the age of the victim called for a determination of her competency, no evidence indicated that she was mentally ill, and ......
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