Hoover v. State

• Decision Date: 09 December 1991
• Docket Number: No. 90A05-9101-CR-00028,90A05-9101-CR-00028
• Citation: 582 N.E.2d 403
• Parties: William P. HOOVER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 403

582 N.E.2d 403

William P. HOOVER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 90A05-9101-CR-00028.

Court of Appeals of Indiana Fifth District.

Dec. 9, 1991.

Geoffrey A. Rivers, Muncie, for appellant-defendant.

Linley E. Pearson, Atty. Gen., Geoff Davis, Deputy Atty. Gen., Office of Attorney General, Indianapolis, for appellee-plaintiff.

RUCKER, Judge.

William P. Hoover was convicted of three counts of child molesting, ¹ as Class C felonies. Hoover presents twenty-three issues for our review which we consolidate and rephrase as:

1. Did the trial court err in finding the child witnesses competent to testify?

2. Did the trial court err in denying Hoover's motion for psychiatric examination of the child witnesses?

3. Did the trial court err in admitting videotaped statements into evidence?

4. Did the trial court err in refusing to give Hoover's tendered jury instruction concerning the special status of child witnesses?

5. Did the trial court abuse its discretion in denying Hoover's motion for change of judge?

6. Did the trial court err by admitting into evidence testimony of the mothers of three of the child witnesses over Hoover's hearsay objection?

7. Did the trial court err in denying Hoover's motion for mistrial?

We affirm. ²

William and Betty Hoover, husband and wife, served as baby sitters for several children. Among them were P.J., H.C., L.C., and D.C. The Hoovers, whom the children called "Grandpa Bill" and "Grandma Betty," frequently allowed the children to spend the night, took the children on outings, and regularly escorted the children to church on Sundays.

In January, 1989, D.C. told her mother that her "bottom" was sore. D.C. explained that Grandpa Bill (Hoover) touched her; however, the touching was a secret. D.C. told her mother that Hoover had also touched H.C. and L.C., but asked her mother not to tell Grandma Betty because she would get angry with them. That evening, D.C.'s mother telephoned the mother of eight-year old H.C. and three-and-a-half-year-old L.C. and advised her of D.C.'s comments. H.C. started crying when her mother began questioning her. The police were contacted immediately.

Within a few days, Officer Teresa Oxley of the Hartford City Police Department met with D.C., H.C., and another child, P.J. and conducted a videotaped interview. Over a year later, In April, 1990, Officer Oxley also conducted a videotaped interview with L.C. During the videotaped interviews, each of the girls recounted instances of Hoover touching their buttocks, vaginal areas, and chests under their clothing. At trial, the videotapes of D.C., H.C., and L.C. were admitted into evidence without objection. P.J. testified in person.

Hoover testified in his own defense and admitted grabbing the children inside their clothing, tickling and squeezing their groin areas and buttocks, touching P.J.'s chest while tickling her, and rubbing L.C.'s chest under her clothing. However, Hoover denied he engaged in such conduct with the intent to arouse his or the children's sexual desires.

I.

Hoover alleges the trial court erred in determining the State's minor witnesses were competent to testify at trial.

The test of competency of a witness is whether the witness has sufficient mental capacity to perceive, to remember and to narrate the incident observed and to understand and appreciate the obligation of an oath. Hughes v. State (1989), Ind., 546 N.E.2d 1203, 1209. It is the trial court's responsibility to determine whether a witness is competent to testify and the trial court's decision will only be reversed for a manifest abuse of discretion. Brewer v. State (1990), 562 N.E.2d 22.

Eleven-year-old P.J. was the only child witness called to testify at trial. The oath was administered and P.J. testified Hoover touched her in her "private parts" and went on to explain she was referring to her vagina and breasts. Record at 986-87. P.J. also testified that she observed Hoover touch H.C., D.C. and L.C. on their breasts and that most of the times the touching was under their clothing, but sometimes it occurred on top of their clothing. Record at 989.

Carol Mott, a therapist with Family Services of Marion, Indiana testified P.J. was referred to her for counseling after a report of sexual abuse. Without objection, Mott testified P.J. was not prone to exaggerate or fantasize about sexual matters, and that P.J. had no motivation to harm Hoover.

The record before us amply demonstrates P.J. had sufficient mental capacity to perceive, to remember and to narrate the incident concerning Hoover's conduct. The record also demonstrates P.J. had the ability to understand and appreciate the obligation of an oath. The trial court did not err in determining P.J. was competent to testify at trial.

Hoover next claims Ind.Code Sec. 34-1-14-5 establishes a rebuttable presumption that H.C., D.C. and L.C. were incompetent witnesses and the State failed to overcome that presumption. Under this statute children under the age of ten are not competent witnesses unless it appears that they understand the nature and obligation of an oath.

Trial began in this case on July 31, 1990. Effective July 1, 1990, I.C. Sec. 34-1-14-5 was amended by P.L. 37-1990. The amendment deleted the provision relating to children under ten years of age. Hence, for purposes of competency, a child witness is treated no differently than any other witness. Ordinarily, the test for competency is whether the witness has sufficient mental capacity to perceive, to remember and to narrate the incident observed and to understand and appreciate the nature and obligation of an oath. Hughes, supra. It is within the discretion of the trial court to determine competency of a witness and we will reverse the court's decision only upon a showing of abuse of discretion. Id.

We first note, whether H.C., D.C. and L.C. could "understand and appreciate the nature and obligation of an oath" is not relevant to this case. The State filed a petition to introduce into evidence the out-of-court videotaped statements of H.C., D.C., and L.C. pursuant to Ind.Code Sec. 35-37-4-6. Under this statute, a videotape statement of a child may be introduced into evidence, provided other statutory conditions are met, even where the child is "incapable of understanding the nature and obligation of an oath." Ind.Code Sec. 35-37-4-6(d). However, despite the statute, H.C., D.C., and L.C. did "understand and appreciate the nature and obligation of an oath." ³

The videotapes clearly show each of the children had the mental capacity to perceive, to remember, to recount their experiences and to demonstrate what happened to them. The trial court did not abuse its discretion by determining the child witnesses were competent to testify.

II.

Hoover also argues the trial court erred in denying his request for a psychiatric examination of the child victims. He claims such an examination was necessary because the victims were not competent to testify.

We have already held the trial court did not abuse its discretion in determining that the child witnesses were competent to testify. Moreover, a defendant charged with a sex offense does not have the right to subject his victim to a psychiatric examination. Lowe v. State (1989), Ind., 534 N.E.2d 1099, 1101. Rather, as with a determination of competency, the necessity for a psychiatric test rests with the sound discretion of the trial court whose decision will not be reversed unless the defendant demonstrates an abuse of discretion. Id.

In support of his argument Hoover cites Easterday v. State (1970), 254 Ind. 13, 256 N.E.2d 901. ⁴

In Easterday, our supreme court reversed a conviction where the trial judge had denied a motion for psychiatric examination of a ten-year-old girl upon whose uncorroborated testimony the conviction rested. The girl had implicated other men in acts of sexual misconduct and had admitted fabricating similar stories about other people.

Unlike Easterday, there was no evidence in this case that the victims implicated anyone other than Hoover, nor that the victims fabricated similar stories about other people. The case at bar is more analogous to Lowe, supra. In Lowe, our supreme court upheld the denial of a psychiatric examination of a thirteen-year-old child molesting victim. Here, as in Lowe, the trial judge had the opportunity to observe the victim at length. The trial court properly exercised its discretion in denying Hoover's request for a psychiatric examination of the children. We find no abuse of discretion and no error.

III.

Hoover next contends the court erred in admitting the videotaped statements into evidence over his objection. He argues the statements contained references to uncharged misconduct, hearsay testimony, and improper interview techniques by the investigating officer.

Prior to trial, Hoover filed a number of motions to suppress the videotaped statements on various grounds. The pre-trial motions were denied. Our review of the record reveals Hoover did not object during trial when the videotaped statements of D.C., H.C., and L.C. were admitted into evidence and played to the jury. Failure to object at trial when the evidence is offered results in waiver of the alleged error even where the defendant has made a pre-trial motion to suppress the evidence. Ballard v. State (1989), Ind., 537 N.E.2d 32.

Apparently recognizing he did not object at trial to the admission of the videotaped statements, Hoover invites us to review this issue under the fundamental error rule. In order to be fundamental, the error must be so prejudicial to the rights of the defendant that he could not have received a fair trial. Howey v. State (1990), Ind., 557 N.E.2d 1326. Fundamental error has also been characterized as error which constitutes clear, blatant, violations of basic and elementary principles, and the resulting harm or potential for harm must be substantial. Grey v. State (1990), Ind., 553...