Newton v. State

• Decision Date: 29 November 1983
• Docket Number: No. 2-283A65,2-283A65
• Citation: 456 N.E.2d 736
• Parties: Michael NEWTON, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 736

456 N.E.2d 736

Michael NEWTON, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 2-283A65.

Court of Appeals of Indiana,

Second District.

Nov. 29, 1983.

Reginald B. Bishop, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Lee Cloyd, Deputy Atty. Gen., Indianapolis, for appellee.

SHIELDS, Judge.

The appellant, Michael Newton (Newton), was convicted of child molesting, a class B felony, I.C. 35-42-4-3(a) (Burns Code Ed., Supp.1983) and incest, a class D felony I.C. 35-46-1-3 (Burns Code Ed., Repl.1979). He was sentenced to concurrent terms of ten years for the class B felony and two years for the class D felony. This appeal raises the following issues:

(1) whether Indiana's child molesting statute is constitutional;

(2) whether the trial court abused its discretion in finding the seven-year-old prosecutrix competent to testify;

(3) whether the trial court erred in allowing the prosecutrix to use anatomically correct dolls to demonstrate the crimes;

(4) whether the trial court erred in allowing the State to impeach Newton's credibility with statements which had been previously ordered suppressed;

(5) whether the verdict was supported by sufficient evidence; and

(6) whether the trial court abused its discretion in sentencing Newton.

We affirm.

I.

Newton initially attacks the constitutionality of the child molesting statute, I.C. 35-42-4-3 (Burns Code Ed., Supp.1983) alleging the statute does not require an element of mens rea. Newton's argument is untimely.

A challenge to the constitutionality of a statute defining a crime must be made by written motion to dismiss filed prior to the arraignment and plea. Marchand v. State, (1982) Ind.App., 435 N.E.2d 284; Salrin v. State, (1981) Ind.App., 419 N.E.2d 1351. Newton first raised the issue of constitutionality in his appellate brief. Thus, his failure to file a motion to dismiss relating to the statute's constitutionality precludes his challenge on appeal. ¹

II.

Newton further objects to the trial court's determination of the competency of the prosecuting witness, T.M. T.M. was seven years of age at the time of the trial. By Indiana statute children under ten are not competent witnesses unless it appears they understand the nature and obligation of the oath, I.C. 34-1-14-5 (Burns Code Ed., Supp.1983), made applicable to criminal proceedings by I.C. 35-1-31-3 (Burns Code Ed., Repl.1979). The determination of whether a child under the age of ten is a competent witness is entrusted to the discretion of the trial court. This court will reverse only where there is no evidence from which the trial court could have found that the child understood the nature and obligation of the oath. Johnson v. State, (1977) 265 Ind. 689, 359 N.E.2d 525.

Newton, recognizing the statutory requirement for competency, argues competency further requires a showing the child witness has sufficient mental capacity to perceive, to remember and to narrate the incident she has observed. Citing Ware v. State, ² (1978) 268 Ind. 563, 376 N.E.2d 1150, for this contention, Newton maintains the child witness did not meet this standard.

Ware is not applicable because it addresses the issue of a witness' asserted mental incompetency, as opposed to incompetency because of age. Rather, when only the age of the witness triggers the question of competency, it remains solely an inquiry into the child's understanding of the nature and obligation of the oath. See Staton v. State, (1981) Ind., 428 N.E.2d 1203; Bowers v. State, (1982) Ind.App., 435 N.E.2d 309; Bennett v. State, (1980) Ind.App., 409 N.E.2d 1189; Fox v. State, (1980) Ind.App., 413 N.E.2d 665. The further probe into a child's mental competency to perceive, to remember and to narrate is required only if the child's mental competency is specially drawn into issue.

In the instant case, the age of the prosecuting witness called for a determination of her statutory competency as a child witness. Newton, as challenger of the witness' competency, bore the burden of producing evidence of mental incompetency. Ware. Newton argues the witness' faulty memory regarding the incident demonstrates her mental incompetency. We disagree. Faulty memory alone goes to the weight and credibility of her testimony, not to her mental competency.

Therefore, lacking evidence of mental incompetency T.M. need only satisfy the statutory requirement for competency. Examination of the transcript reveals that sufficient evidence existed for the trial court's finding of competency. The trial court and the State elicited responses from T.M. that demonstrated her ability to distinguish the truth from lies. Their examination further revealed T.M. understood her obligation in testifying under oath.

It was not an abuse of discretion by the trial court to permit T.M. to testify.

III.

Newton argues the trial court erroneously permitted the child witness to testify with the aid of anatomically correct dolls. On appeal, this argument is predicated upon various bases. However, grounds not raised in the trial court are not available for challenge on appeal. Davidson v. State, (1982) Ind., 442 N.E.2d 1076; Brown v. State, (1981) Ind., 417 N.E.2d 333. ³ Therefore, we restrict our examination to Newton's trial objection which was:

"[I]f the alleged victim is competent to testify, I don't think the use of the dolls would be necessary, if she's competent to testify as to the facts and what happened. She's testified that she first saw the dolls in the Prosecutor's Office, has practiced with them a couple times. And, I think, if she's competent to testify, her statements as to what happened would be sufficient."

Record at 239-240.

Liberally construed, his claim appears to be 1) the victim's use of the dolls at trial was unnecessary in light of the trial court's ruling she was a competent witness, and 2) her practicing with the dolls before trial was improper because he did not have the opportunity to cross examine and confront the witness.

Competency of a witness and the use of demonstrative evidence are not interdependent or particularly relevant to one another. Demonstrative evidence is admissible if the item is sufficiently explanatory or illustrative of relevant testimony to be of potential help to the trier of fact. Snyder v. State, (1979) Ind.App., 393 N.E.2d 802. Such a foundation was laid for the victim's use at trial of the anatomical dolls.

Newton further argues the pretrial use of the dolls impinged upon his right to counsel and his right to cross-examination. He analogizes the witness' out of court experience with the dolls to hypnotically enhanced testimony, citing Peterson v. State, (1983) Ind. 448 N.E.2d 673. His argument is based on his assumption the witness was able to remember details at trial she was previously unable to remember at her deposition as a result of her practice with the dolls.

Although we find Newton's argument creative, his analogy drawn from Peterson is inapplicable in this context for two reasons. First, Newton's assumption the dolls improperly enhanced the victim's testimony is not supported by the evidence. No witness, expert or otherwise, was produced to demonstrate any causal relationship between working with the witness prior to trial and a resultant "suggestive" recollection. To the contrary, the victim testified her testimony resulted from her own perception of the events. She explained her failure to recount the incident at her deposition was a result of her fear. This testimony is corroborated by her narration of a substantially similar version of the facts to her grandmother four days after the incident. The evidence does not bear out the existence of any recount of the events which was the product of an "aided" memory.

Second, there are several distinctive features of hypnotically adduced testimony absent in pretrial witness preparation, which render Newton's hypnosis analogy inappropriate.

The primary objection to recollection derived from a hypnotic state is just that--it is obtained while the witness is in a hypnotic trance. Opponents of its use as the basis for court room testimony note two salient conditions that exist when a person is in a hypnotic state--hypersuggestibility and hypercompliance. "[T]he hypnotized individual is not only more easily influenced but is also more highly motivated to please others, ..." Pearson v. State, (1982) Ind., 441 N.E.2d 468, 471 (quoting Levitt, The Use of Hypnosis to 'Freshen' the Memory of Witnesses or Victims, Trial, April 1981, at 56).

Theoretically, suggestive comments made by counsel during pretrial discussions with the witness have the potential of tainting a witness' testimony. However, the taint of fabrication is not akin to a witness' unknowing responsiveness to suggestion made under hypnosis.

Further, hypnotically prompted testimony always presents questions regarding its scientific reliability. Pretrial witness preparation, with or without practice with physical evidence, does not pose like considerations of scientific accuracy.

Finally, the purposes behind hypnotizing a witness and working with a witness prior to trial are different. Hypnosis is used as a method by which a witness' recollection is potentially increased. It has been shown that hypnosis can effect witness recall not otherwise attainable. The purpose of the victim's practice with the dolls in the instant case was to relax the victim and help her verbalize her own recollection of the incident. Changing the victim's memory was not an object of the pretrial exchanges with the victim.

Even though we reject Newton's contention the witness' experience with the dolls prior to trial was improper and her recollection of the events was therefore contaminated, the fact the witness did practice is a factor properly considered in determining her credibility. This provides the opponent of such testimony the opportunity to undermine the value of such testimony by...