Maynard v. State, 41S00-8601-CR-89

• Decision Date: 30 September 1987
• Docket Number: No. 41S00-8601-CR-89,41S00-8601-CR-89
• Citation: 513 N.E.2d 641
• Court: Indiana Supreme Court
• Parties: John N. MAYNARD, Appellant (Defendant below) v. STATE of Indiana, Appellee (Plaintiff below)

Page 641

513 N.E.2d 641

John N. MAYNARD, Appellant (Defendant below) v. STATE of Indiana, Appellee (Plaintiff below)

No. 41S00-8601-CR-89.

Supreme Court of Indiana.

Sept. 30, 1987.

G. Michael Loveall, Jones Loveall Johnson & Bailey, Franklin, for appellant.

Linley E. Pearson, Atty. Gen., Joseph N. Stevenson, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-Appellant, John N. Maynard, was convicted by a Johnson County jury of two counts of child molesting, class B felonies. The trial court ordered him to serve consecutive sentences of eighteen (18) years and twelve (12) years. In this direct appeal, Appellant raises the following issues for our review:

1. sufficiency of the evidence supporting each conviction;

2. error in finding the child witnesses competent to testify;

3. error in excluding testimony concerning a prior incident of molestation;

4. prosecutorial misconduct;

5. error in sustaining the State's objection to certain impeachment testimony;

6. error in admitting evidence of other uncharged acts of molestation committed by Appellant;

7. whether the alleged errors taken together amount to reversible error, and;

8. error in sentencing.

Appellant was charged with two counts of performing or submitting to deviate sexual conduct with a child under the age of twelve (12) years. At the time these crimes were committed, Appellant lived with his wife, Jan Maynard, her two sons, D.V., and G.V., and the couple's one year old son, John, Jr. D.V. was nine (9) years old and G.V. was eight (8) years old. The evidence at trial indicated Appellant forced both D.V. and G.V. to perform oral sex on him and he also performed oral sex on D.V.

I

Appellant challenges the sufficiency of the evidence supporting both convictions. When sufficiency of the evidence supporting a criminal conviction is challenged on appeal, we apply a narrow standard of review. We neither reweigh the evidence nor judge the credibility of the witnesses. Rather, we look at the evidence most favorable to the State together with all reasonable inferences to be drawn therefrom. If there is substantial evidence of probative value from which the jury could have reasonably inferred guilt beyond a reasonable doubt, the conviction will be affirmed. Arthur v. State (1986), Ind., 499 N.E.2d 746, 747; McMurry v. State (1984), Ind., 467 N.E.2d 1202, 1204.

The testimony presented at trial is summarized as follows. Appellant and Jan were married in August 1983. The couple had some difficulties but these seemed to subside upon the birth of the couple's first child. Appellant would care for the newborn baby during the day, and work during the afternoon and evening hours.

During the fall of 1984, D.V. and G.V. were in school and rode the bus home each night. Appellant was the only adult at home when the boys returned from school. In October, 1984, D.V.'s grades began to slip and he failed to turn in a science project on time. Jan learned that Appellant frequently kept one or both of the boys home on school days to take care of the baby while Appellant slept. In December, 1984, Jan took the children and moved out of the home. She stated Appellant was becoming increasingly more violent and was smoking marijuana in the presence of the children. The boys stayed with either their grandparents or their Aunt Catherine.

On January 5, 1985, G.V.'s Aunt Catherine scolded him for misbehaving. G.V. then told his grandmother, Thayis Vest, that he felt like everyone, including Appellant, liked his brother, D.V., more than they liked him. Thayis asked G.V. why he felt that way. G.V. responded that every night after school, Appellant called D.V. into the bedroom while he (G.V.) was told to sit on the couch.

Thayis was disturbed by this comment and asked Jan to talk to D.V. about the incidents. At first, D.V. said Appellant was making him smoke marijuana in the bedroom. Jan responded that she would have to go to the police and that D.V. might have to take a lie detector test to determine if he was telling the truth. Jan testified that D.V. looked scared, started crying, and said that Appellant also made him do other things in the bedroom.

D.V. then related that Appellant would take him into the bedroom and make him watch as Appellant masturbated. Several times, Appellant made D.V. fondle him. Appellant forced D.V. to perform oral sex on him and he performed oral sex on D.V. Appellant threatened D.V. with a "whippin" if he did not comply with Appellant's orders. D.V. stated he never told anyone because he was embarrassed. He knew what he was doing was wrong but felt it might cause his mother to divorce Appellant if he told her.

G.V. was asked if Appellant ever did those things to him. G.V. stated that one time Appellant asked him to perform oral sex on Appellant. G.V. refused and Appellant threatened him with a "whippin." G.V. then complied. G.V. stated he never told anyone about the incident because he was embarrassed.

Appellant presented testimony that the boys stayed with their grandmother during the summer of 1984. He stated he kept them home from school on only a few occasions. He explained D.V.'s absences from school were due to problems with D.V.'s tonsils. Appellant testified he left for work between 4:00 p.m. and 5:00 p.m., and that he had friends over when he was getting ready for work. This testimony was corroborated by Susan Richard, who stated she visited Appellant's home almost every day and was present when the children returned from school. She testified Appellant never took either child into a bedroom alone while she was there. Appellant also presented testimony that he filed for divorce one week prior to the time these accusations were made against him. Appellant's defense was that he did not have an opportunity to commit these acts.

Appellant argues that D.V. and G.V.'s testimony was riddled with inconsistencies and inaccuracies, making it questionable at best. Since their testimony was not corroborated by any other evidence, Appellant claims the testimony he gave is more worthy of belief.

It is the jury's function to judge the credibility of the witnesses. Tyra v. State (1987), Ind., 506 N.E.2d 1100, 1102; Rodgers v. State (1981), Ind., 422 N.E.2d 1211, 1213. The jury may believe whomever they choose. Watkins v. State (1986), Ind., 493 N.E.2d 446, 447; Robinson v. State (1985), Ind., 486 N.E.2d 986, 988. We will not disturb the jury's judgment unless the evidence clearly shows the verdict was so incredible as to be beyond belief, or that there was no probative evidence from which the jury could have found the defendant guilty. Hodge v. State (1982), Ind., 442 N.E.2d 1006, 1009.

Here, the jury chose to believe the victims' testimony. We have held that the uncorroborated testimony of the victim is sufficient to sustain a criminal conviction for child molesting even though the victim is a minor. Jones v. State (1983), Ind., 445 N.E.2d 98, 100; Smith v. State (1982), Ind., 432 N.E.2d 1363, 1372. We find that, based on the testimony presented, the jury's verdict is supported by probative evidence. For us to hold otherwise would require us to reweigh the evidence, which we cannot do. Tyra, 506 N.E.2d at 1102. We therefore hold there was sufficient evidence presented from which the jury could reasonably conclude Appellant committed the crimes charged.

II

Next, Appellant argues the trial court erred in finding G.V., age 8, and D.V., age 10, competent to testify.

The test used to determine whether a trial court erred in making a determination of competency was set forth in Peters v. State (1984), Ind., 470 N.E.2d 708 as follows:

"Children less than ten years old may testify if 'it appears that they understand the nature and obligation of an oath.' Ind.Code Sec. 34-1-14-5(2). The determination of a child's competency lies within the trial judge's discretion since the trial judge has the opportunity to observe the child's intelligence, demeanor and maturity. Lindsey v. State, (1984) Ind., 465 N.E.2d 721; Buttram v. State, (1978) 269 Ind. 598, 382 N.E.2d 166, reh. denied. This Court has held that a child is competent to testify if the trial court finds the child knows the difference between telling the truth and telling a lie and knows that he or she will be punished for telling a lie. Staton v. State, (1981) Ind., 428 N.E.2d 1203. Accordingly, the trial court's decision will not be reversed unless it represents a manifest abuse of discretion. Lindsey, supra; Stewart v. State, (1982) Ind., 442 N.E.2d 1026."

Id. at 710.

Here, the trial judge asked G.V. if he understood what an oath meant. G.V. responded that it meant to swear on the Bible or you would go to hell. The judge then explained that G.V. must tell the truth so that he would not get into trouble with the court. While this questioning was not extensive, it does indicate that G.V. knew the difference between the truth and a lie, and that telling a lie would result in punishment. The trial judge observed G.V.'s responses not only to his questions, but also to those asked by the attorneys. Appellant does not claim, nor is there any showing, that G.V.'s testimony was so unbelievable that it would indicate he was incompetent to testify. Rather, G.V.'s testimony was given in a very forthright and candid manner, given his age and maturity. Further, his testimony was consistent with the testimony of D.V. Given all this, we cannot say the trial court abused its discretion in allowing G.V. to testify. The weight to be given his testimony was, of course, for the jury to decide.

D.V. was ten (10) years old at the time he testified. Thus, he was presumed competent to testify. Jethroe v. State (1974), 262 Ind. 505, 509, 319 N.E.2d 133, 136; Ind.Code Sec. 34-1-14-5 (Burns 1986). Nevertheless, the trial judge questioned him concerning what it meant to tell the truth, and what would happen if he did not do so. D.V. indicated he understood he had to tell the truth or he...