Howard v. State
| Decision Date | 28 October 2004 |
| Docket Number | No. 29A05-0402-CR-101.,29A05-0402-CR-101. |
| Citation | 816 N.E.2d 948 |
| Parties | Ronald C. HOWARD, Jr., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Steven P. Stoesz, Stoesz & Stoesz, Westfield, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Justin F. Roebel, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Appellant-Defendant, Ronald C. Howard Jr. (Howard), appeals his conviction for Count I, child molesting, a Class A felony, Ind.Code § 35-42-4-3(a)(1).
We affirm.
Howard raises seven issues on appeal, which we restate as follows:
Howard and Tina Brooks (Brooks) were married on October 1, 1994. Brooks had a daughter, C.C., born on October 14, 1991, from a previous relationship. Sometime between July 1, 1996 and October 31, 1997, Howard engaged in sexual acts with his six-year-old stepdaughter. He made her watch sexual videos and "would make [her] put his thing in [her] mouth." (Transcript p. 619). C.C. clarified that she was referring to Howard's penis. Howard also "would lick [her] private parts," her vagina. (Tr. p. 619). C.C. remembers that on one distinct occasion "[y]ellow stuff" came out of Howard's penis when he placed it in her mouth. (Tr. p. 632). After refusing to swallow, Howard allowed C.C. to wash out her mouth.
When C.C. told Brooks about these incidents, Brooks temporarily separated from Howard. However, two to three weeks later, they moved back in with Howard. Brooks' and Howard's divorce was finalized sometime in 1998. According to Brooks, C.C. never informed her of these incidents while they were living with Howard. She was first notified about the molestations when C.C. told Brooks' subsequent boyfriend p late 1997. Around that time, Brooks filed an initial complaint with the Hamilton County Sheriff's Department. In the summer of 2002, C.C. received counseling due to behavioral problems. During the course of counseling, C.C. made certain disclosures to her doctor, which the doctor felt legally compelled to report to the authorities.
On June 24, 2002, the State filed an information, charging Howard with Count I-IV, child molesting, a Class A felony, I.C. § 35-42-4-3. On November 5 through November 13, 2003, a jury trial was held. At the close of the evidence, the jury found Howard guilty of Count I, child molesting, and acquitted him on the remaining Counts. On December 15, 2003, during the sentencing hearing, the trial court sentenced Howard to 35 years at the Indiana Department of Correction.
Howard now appeals. Additional facts will be provided as necessary.
Howard first contends that the trial court failed to exercise any discretion at all when it allowed C.C. to take the witness stand and commence testifying without determining first whether she was a competent witness. However, our review of the record shows that Howard never objected to C.C.'s continued testimony. Generally, a contemporaneous objection is required to preserve an issue for appeal. Spears v. State, 811 N.E.2d 485, 488 (Ind.Ct.App.2004) (quoting Anderson v. State, 653 N.E.2d 1048, 1051 (Ind.Ct. App.1995)). Seeking to avoid procedural default, Howard urges that his claim is not foreclosed because the trial court's failure to assess C.C.'s competency constituted fundamental error. Nevertheless, we acknowledge that the fundamental error doctrine is extremely narrow. To qualify as fundamental error, "an error must be so prejudicial to the rights of the defendant as to make a fair trial impossible." Id. at 489 (quoting Willey v. State, 712 N.E.2d 434, 444-45 (Ind.1999)). To be fundamental error, the error "must constitute a blatant violation of basic principles, the harm, or potential for harm must be substantial, and the resulting error must deny the defendant fundamental due process." Id. (quoting Wilson v. State, 514 N.E.2d 282, 284 (Ind.1987)).
We note that "[e]very person is competent to be a witness except as otherwise provided in [the Indiana Evidence] rules, or by act of the Indiana General Assembly." Ind. Evidence Rule 601. A determination of a witness' competency lies within the sound discretion of the trial court and is reviewable only for a manifest abuse of that discretion. Aldridge v. State, 779 N.E.2d 607, 609 (Ind.Ct.App. 2002), trans. denied. Thus, it is within the discretion of the trial court to determine whether a child is competent to testify based upon the judge's observation of the child's demeanor, responses to questions posed to her by counsel and the court. Harrington v. State, 755 N.E.2d 1176,1180 (Ind.Ct.App.2001). Although Indiana Evidence Rule 601 abandoned the previously arbitrary lines drawn regarding age, in favor of a rule which assumes competency until otherwise demonstrated by the opponent of the testimony, the trial court is still required to determine whether a child witness (1) understands the difference between telling a lie and telling the truth, (2) knows whether she is under a compulsion to tell the truth, and (3) knows what a true statement actually is. See Aldridge, 779 N.E.2d at 609; Harrington, 755 N.E.2d at 1180.
In the instant case, C.C. was called as the State's witness. Prior to answering general background questions, the trial court asked C.C. to raise her light hand and to take the oath. The record shows that C.C. was "duly sworn to tell the truth, the whole truth, and nothing but the truth." (Tr. p. 469). Following the oath, the State introduced C.C. to all the people in the courtroom and explained their respective duties. The record further reflects that the State commenced questioning C.C. with general questions about her education. However, the record is devoid of any testimonial evidence establishing that C.C. understood the difference between the truth and a lie and the importance of telling the truth at trial. See Harrington, 755 N.E.2d at 1180. Consequently, an error was made.
Nevertheless, our inquiry does not end here. Since Howard failed to raise a timely objection to C.C.'s testimony, he carries the heightened burden of proof, establishing that the trial court's failure to assess C.C.'s competency resulted in substantial harm. See Spears, 811 N.E.2d at 489. Here, the record reflects that at the day of trial C.C. was twelve years of age. At the close of the general background, questions, the State attempted to direct C.C. to the molestation evidence. Asking "tell me what rape means," C.C. responded "[s]omething that people do to little kids." (Tr. p. 481). Following this response, the record shows that C.C. started to cry, refused to answer any more questions, and requested a break. The record further establishes that after the break, the trial court conducted a hearing outside the presence of the jury, for the purpose of determining whether C.C. was able to continue her testimony. Concluding that C.C was unavailable for further testimony, the trial court permitted the State to present C.C.'s deposition, which was previously taken by Howard's counsel, to the, jury. Our review of her deposition shows that after taking the oath, the following exchange occurred between C.C. and Howard's counsel:
In Russell v. State, 540 N.E.2d 1222 (Ind.1989), our supreme court held that the trial court's decision to allow a child to testily without adequately determining whether the child knew the difference between the truth and a lie was harmless where the child demonstrated during subsequent questioning that she in fact understood the difference. Id. at 1225. As supported by the record, C.C. adequately explained the difference between the truth and a lie, and its consequences when questioned by Howard's counsel during her deposition. Because of C.C.'s unavailability, the deposition testimony was presented to the jury and the trial court, and consequently read into the record. Accordingly, although the trial court did not adequately establish C.C.'s competency prior to allowing her to testify, the subsequent inclusion of her deposition testimony made it clear that she understood the difference between the truth and a lie and the importance of telling the truth at trial. See id., Harrington, 755 N.E.2d at 1180. Therefore, even though an error was made, this error was harmless. See Russell, 540 N.E.2d at 1225. Accordingly, we conclude that Howard...
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