Newsome v. State

• Decision Date: 14 October 1997
• Docket Number: No. 20A03-9701-CR-25,20A03-9701-CR-25
• Citation: 686 N.E.2d 868
• Court: Indiana Appellate Court
• Parties: Steven G. NEWSOME, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

Page 868

686 N.E.2d 868

Steven G. NEWSOME, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 20A03-9701-CR-25.

Court of Appeals of Indiana.

Oct. 14, 1997.

Neil E. Holbrook, Goshen, for Appellant-Defendant.

Jeffrey A. Modisett, Attorney General, Randi F. Elfenbaum, Deputy Attorney General, Indianapolis, for Appellee-Plaintiff.

OPINION

STATON, Judge.

Steven J. Newsome appeals his conviction by a jury for two counts of Child Molesting, the first count a Class B Felony and the second count a Class C Felony. The first count was based on a charge that Newsome performed cunnilingus on the victim, and the second count was based on the charge that Newsome fondled the victim's vaginal area. Newsome presents three issues for our review:

I. Whether the trial court properly adjudged the victim, a seven-year-old girl, competent to testify at trial.

II. Whether there was sufficient credible evidence presented at trial to justify Newsome's conviction for the crime of Child Molesting.

III. Whether the prosecutor committed misconduct during closing argument.

We affirm.

During August of 1995, Newsome lived in the same household with the victim, a six-year-old girl, and the victim's family. On August 22, 1995, Officer Michael Anglin of the Nappanee City Police Department began investigating allegations that Newsome molested the victim. Later that day, Newsome came to the police station along with Reverend Bill Keene, who had originally reported the molestation, in order to speak with Officer Anglin. After signing an advice of rights form, Newsome admitted fondling the victim's vaginal area, and upon further questioning by Officer Anglin admitted to attempting to perform oral sex on the victim.

At trial, the victim testified that Newsome touched her vagina, on the inside and the outside, with his fingers and with his mouth. The victim was seven years old at the time she testified.

I. Witness Competence

Newsome challenges the trial court's determination that the victim, a seven-year-old girl, was competent to testify at trial. In challenging the trial court's competency determination, Newsome argues that no evidence was presented to indicate that the victim understood the difference between the truth and a lie. It appears that Newsome relies on this court's decision in Casselman v. State, 582 N.E.2d 432 (Ind.Ct.App.1991). In Casselman, this court held that before a child will be deemed competent, it must be established that the child (1) understands the difference between telling a lie and telling the truth, (2) knows she is under a compulsion to tell the truth, and (3) knows what a true statement actually is. Id. at 435 (citing Short v. State, 564 N.E.2d 553, 556 (Ind.Ct.App.1991)); see also Russell v. State, 540 N.E.2d 1222, 1224 (Ind.1989).

The State responds that sufficient evidence was presented to indicate that the victim understands the difference between the truth and a lie, and by noting that under Indiana Rule of Evidence 601 all persons are presumed competent to testify, including children. Appellee's Brief at 9. In light of the State's partial reliance on Ind.Evidence Rule 601 and the trial court's reliance on this rule as a basis for finding the victim's testimony competent, ¹ we must first determine what impact, if any, Ind.Evidence Rule 601 has on our previous decisions regarding the competence of children to testify.

The Indiana Rules of Evidence were first made effective in Indiana courts as of January 1, 1994. See, INDIANA RULES OF COURT, INDIANA RULES OF EVIDENCE 111 (1997). Ind.Evidence Rule 601 provides: "Every person is competent to be a witness except as otherwise provided in these rules or by act of the Indiana General Assembly." Ind.Evidence Rule 601 (emphasis added). This rule is not phrased as a presumption of competence; its literal language requires that all witnesses be determined competent unless another Indiana Rule of Evidence or an act of the General Assembly provides otherwise. As recently as 1990, Indiana had a statute which presumed that children under the age of 10 were incompetent to testify. IND.CODE § 34-1-14-5 (1988). However, that provision was repealed by the General Assembly. Act of March 27, 1990, Pub.L. 37, § 20, 1990 Ind.Acts 1279-80. Thus, if Ind.Evidence Rule 601 is read literally, children would automatically be deemed competent to testify without the need for determining whether a child understands the nature and significance of her oath. See, 13 ROBERT LOWELL MILLER, JR., INDIANA PRACTICE, INDIANA EVIDENCE § 601.101 (2nd ed. 1995). Such a reading of Ind.Evidence Rule 601 would nullify our previous decisions and those of the Indiana Supreme Court which require a trial court to determine that a child knows her obligation to tell the truth, and understands the difference between the truth and a lie, before allowing her to testify. See, Casselman, 582 N.E.2d at 435; Russell, 540 N.E.2d at 1224.

Because of the relatively recent adoption of the Indiana Rules of Evidence, neither this court nor the Indiana Supreme Court has yet addressed Ind.Evidence Rule 601's impact on witness competency determinations. ² However, the issue has been considered by several federal courts as it pertains to Federal Evidence Rule 601, which is nearly identical to Indiana's rule. ³ Although most of the federal courts that have considered the issue have done so in the context of witnesses who are alleged to be mentally incompetent, the analysis of Federal Evidence Rule 601's impact on mental competency determinations is analogous to the impact of the rule on child competency determinations since in both cases the issue is whether Rule 601 precludes a court from engaging in any type of competency determination whatsoever.

There is a split in the federal courts regarding the effect of Federal Evidence Rule 601. The majority of federal courts that have considered the issue have held that a trial court still has an obligation to ensure that minimum standards of competency are met before allowing a witness to testify. See, 3 WEINSTEIN'S FEDERAL EVIDENCE, § 601.03[a], p. 601-9 n. 1. In United States v. Odom, 736 F.2d 104 (4th Cir.1984), the Fourth Circuit noted that a district court may prohibit a witness from testifying, even under Rule 601, where the witness does not understand the duty to testify truthfully. Id. at 112. In United States v. Gutman, 725 F.2d 417 (7th Cir.1984), cert. denied, 469 U.S. 880, 105 S.Ct. 244, 83 L.Ed.2d 183 (1984), the Seventh Circuit held, "Although insanity ... is no longer a ground for disqualifying a witness, a district judge has the power, and in an appropriate case the duty, to hold a hearing to determine whether a witness should not be allowed to testify because insanity has made him incapable of testifying in a competent fashion." Id. at 420 (citations omitted).

The minority position adheres to a literal interpretation of Federal Evidence Rule 601 under which a trial court may not conduct any inquiry into the competence of witnesses. In United States v. Roach, 590 F.2d 181 (5th Cir.1979), the Fifth Circuit held:

... under the new Federal Rules of Evidence it is doubtful that mental incompetence would even be grounds for disqualification of a prospective witness.... [N]owhere is mental competence mentioned as a possible exception [to Rule 601].... [T]here seems no longer to be any occasion for judicially-ordered psychiatric examinations or competency hearings of witnesses.... Id. at 185-86.

See also, United States v. Ramirez, 871 F.2d 582, 584 (6th Cir.1989), cert. denied, 493 U.S 841, 110 S.Ct. 127, 107 L.Ed.2d 88 (1989) (implying that Federal Evidence Rule 601 precludes any examination of witness competency by the court, although competence may be reviewed under other evidence rules such as Federal Evidence Rule 403 and 603).

Reviewing the purpose behind Federal Evidence Rule 601's seemingly strict language also provides useful insight into the appropriate interpretation of Indiana's rule. A leading commentator on the Federal Rules of Evidence suggests that the purpose of Federal Evidence Rule 601 was to abolish group-based competency distinctions, which provide, for example, that all children under a certain age are unable to testify. 3 WEINSTEIN'S FEDERAL EVIDENCE, § 601.02, p. 601-7. Instead of totally prohibiting a certain class of persons from testifying, Federal Evidence Rule 601 allows the jury to hear testimony from witnesses of questionable competence, and it allows the jury to determine the appropriate weight and credibility to give to that evidence. See FEDERAL RULES OF EVIDENCE SERVICE, FINDING AIDS, ADVISORY COMMITTEE'S NOTE, RULE 601, Article VI, p. 1 (1987). Although the rule prohibits blanket exclusions of classes of witnesses, it is still desirable for the trial court to make an inquiry into the individual characteristics of a particular witness to ensure that he has a "minimum standard of credibility necessary to permit any reasonable person to put any credence in a witness's testimony." 3 WEINSTEIN'S FEDERAL EVIDENCE, § 601.02, p. 601-7; see also ADVISORY COMMITTEE'S NOTE, RULE 601 ("The question [of witness capacity] is one particularly suited to the jury as one of weight and credibility, subject to judicial authority to review the sufficiency of the evidence." (emphasis added)).

In light of the majority position of the federal courts and the purposes behind Federal Evidence Rule 601--and by implication Ind.Evidence Rule 601--we think the better reading of Ind.Evidence Rule 601 is to require the trial court to continue to conduct an inquiry into witness competency to ensure that minimum standards of competency are met. Thus, we hold that Ind.Evidence Rule 601 does not affect previous Indiana decisions regarding the competence of children to testify. A trial court will still be required to conduct the inquiry set out in Casselman, 582 N.E.2d at 435--whether the child (1) understands the difference between telling...