LeMaster v. State
| Decision Date | 15 October 1986 |
| Docket Number | No. 1085S440,1085S440 |
| Citation | 498 N.E.2d 1185 |
| Parties | Frank LeMASTER, Jr., Appellant (Plaintiff Below), v. STATE of Indiana, Appellee (Defendant Below). |
| Court | Indiana Supreme Court |
Thomas J. Mattern, Wabash, for appellant.
Linley E. Pearson, Atty. Gen., Theodore E. Hansen, Deputy Atty. Gen., Indianapolis, for appellee.
When a parolee commits acts which give rise to multiple convictions, does Ind.Code Sec. 35-50-1-2 require that the sentences for these convictions be served consecutive to each other? We hold that it does not.
Appellant Frank LeMaster, Jr., was convicted of two counts of child molesting, one as a class B felony and one as a class C felony, Ind.Code Sec. 35-42-4-3 (Burns 1985 Repl.), and a count of criminal deviate conduct, a class B felony, Ind.Code Sec. 35-42-4-2 (Burns 1985 Repl.). He was sentenced to consecutive terms of 20 years for each of the class B felonies and 8 years for the class C felony.
The evidence at trial showed that LeMaster was the live-in babysitter for five children whose parents worked during the day. During his nine months in the home, LeMaster molested two of the girls, ages 6 and 10 at the time, and a boy, age 4. He showed pornographic movies to at least one of the victims.
LeMaster, who weighed 270 pounds, threatened the younger children with physical harm if they revealed his attacks. He warned the 10-year-old girl to keep silent or he would tell her parents that she begged him to go to bed with her. After LeMaster left the home, the parents learned what had happened and contacted police.
LeMaster committed the present offenses while he was on unsupervised parole from a life sentence for a 1957 Kentucky armed robbery. In sentencing LeMaster for the three convictions at bar, the trial court took note of Ind.Code Sec. 35-50-1-2 (Burns 1985 Repl.), which provides:
(a) Except as provided in subsection (b) of this section, the court shall determine whether terms of imprisonment shall be served concurrently or consecutively.
(b) If a person commits a crime:
(1) After having been arrested for another crime, and
(2) Before the date he is discharged from probation, parole, or a term of imprisonment imposed for that other crime:
the terms of imprisonment for the crimes shall be served consecutively, regardless of the order in which the crimes are tried and sentences are imposed.
The record clearly shows that the trial court wanted to impose concurrent sentences for the present crimes because LeMaster was 47 years old and in ill health. Nonetheless, the court imposed consecutive sentences after concluding that LeMaster's status as a parolee made doing so mandatory under Ind.Code Sec. 35-50-1-2.
That statute addresses the problems inherent in sentencing a defendant who commits a crime while on parole. The new conviction may constitute a parole violation for which the defendant could be returned to prison. In such a case, Ind.Code Sec. 35-50-1-2 requires the sentences for the present offenses be served consecutive to any time resulting from the parole violation. As appellant suggests, that statute does not require each of the sentences for the present crimes be served consecutively to each other. Perry v. State (1978), 177 Ind.App. 334, 379 N.E.2d 531. Of course, the trial court could find aggravating circumstances which outweigh any mitigating circumstances and order consecutive sentences for the present offenses. Ind.Code Sec. 35-38-1-7 (Burns 1985 Repl.).
In LeMaster's case, his sentences for the present crimes must be served consecutively to any time that he is required to serve as a result of his parole violation. We remand this case to allow the trial court to do what it wanted in the first place: impose concurrent sentences for the three present offenses, to be served consecutively to any Kentucky time. 1
The trial court twice charged the jury with the legal definition of "knowingly." LeMaster alleges such repetition improperly emphasized the element of intent and thus was so prejudicial as to deny a fair trial. While the repetition was unnecessary, LeMaster's claim of undue prejudice is unpersuasive. "Knowingly" is a term of art under the Indiana Code and thus requires definition when used in an instruction. Abercrombie v. State (1985), Ind., 478 N.E.2d 1236. Twice defining this word is an incidental mistake which constitutes no more than harmless error.
LeMaster also alleges error in the trial court's determination that the younger of the two girls, who was seven years old at the time of trial, was a competent witness. After she was sworn and took the stand, the trial court questioned the child as follows:
The court then requested her age, birthdate, name, school and grade. The child did not know her birthday but otherwise answered the questions. "Now, are you going to tell the truth in everything you say here from now on?" the court then asked. The child responded, "Yes."
The prosecutor subsequently questioned the child in greater depth about her knowledge of an oath and the meaning of truth. The child was unclear about the definition of an oath, but she discerned the difference between truth and falsehood. She once again promised to tell the truth.
LeMaster claims the trial court's questioning of the child was insufficient to determine her competency as a witness. Children under 10 years old are incompetent witnesses "unless it appears they understand the nature and obligation of an oath." Ind.Code Sec. 34-1-14-5 (Burns 1985 Supp.). A child is competent...
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