Page v. State, No. 1179S327
| Docket Nº | No. 1179S327 |
| Citation | 410 N.E.2d 1304, 274 Ind. 264 |
| Case Date | October 07, 1980 |
| Court | Supreme Court of Indiana |
Page 1304
v.
STATE of Indiana, Appellee (Plaintiff Below).
[274 Ind. 265]
Page 1305
Dennis Brinkmeyer, Evansville, for appellant.Theodore L. Sendak, Atty. Gen., Janis L. Summers, Deputy Atty. Gen., Indianapolis, for appellee.
PRENTICE, Justice.
Defendant (Appellant) was convicted in a jury trial of Rape, a Class B Felony, Ind.Code § 35-42-4-1(a)(1) (Burns 1979), and
Page 1306
sentenced to fourteen (14) years imprisonment. His direct appeal presents the following issues for our determination:(1) Whether the trial court erred in determining that the victim was a competent witness.
(2) Whether the trial court erred in appointing a psychologist, rather than a psychiatrist, to examine the victim for competency and psychiatric purposes.
(3) Whether the trial court erred in denying the defendant's motion for judgment on the evidence.
(4) Whether the evidence was sufficient to support the conviction.
(5) Whether the trial court erred in denying the defendant's motion for a mistrial based upon impermissible, prosecutorial remarks.
The victim in this case was twelve (12) years old at the time of the crime, and thirteen (13) years old at the time of the trial. However, she was mentally retarded, having a mental age of five and one-half (51/2) years. Because of this, the defendant contends that the trial court erred in determining that the victim was competent to testify. The competency determination was made following a full evidentiary hearing.
Ind.Code § 34-1-14-5 (Burns 1980) provides that children under ten (10) years of age shall not be competent witnesses, unless it appears that they understand the nature and obligation of an oath. Thus, we have held that any person ten (10) years of age or older is competent to testify, unless the defendant can establish that the person is not so competent. Jethroe v. State, (1974) 262 Ind. 505, [274 Ind. 266] 509, 319 N.E.2d 133, 136. The defendant in no manner met that burden in the instant case. Moreover, even if we were to view the victim as being less than ten (10) years of age because of her mental age, the competency determination lay within the trial court's discretion. There is no basis for disturbing a competency determination when the evidence is susceptible to conflicting inferences and when the trial court has had the opportunity to observe the demeanor of the witness. Lewis v. State, (1976) 264 Ind. 288, 342 N.E.2d 859. Accordingly, we will not disturb the trial court's determination that the victim was competent to testify.
The defendant next contends that the trial court erred in appointing a psychologist, rather than a psychiatrist, to examine the victim. Apparently, the examination was for competency, as well as psychiatric reasons. The contention is without merit.
We have held in the past that a defendant has no right, in a sex offense case, to subject the victim to a psychiatric examination. Holder v. State, (1979) Ind., 396 N.E.2d 112, 113; Easterday v. State, (1970) 254 Ind. 13, 16-17, 256 N.E.2d 901, 903. There being no right to the examination, it follows that there is no right to have a psychiatrist, rather than a psychologist, perform the examination when one is ordered. Rather, this was an instance of a trial court's exercising its discretion to obtain the assistance it deemed necessary in a given case.
Finally, the record does not contain an objection by the defendant to the testimony of the psychologist. It is fundamental that one can not assign error for the first time on appeal. Gee v. State, (1979) Ind., 389 N.E.2d 303; Bell v. State, (1977) 267 Ind. 1, 366 N.E.2d 1156.
ISSUES III & IV
The defendant contends that the trial court erred in denying his motion for judgment on the...
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Judy v. State, No. 580S128
...appellate review by this Court of the trial court's sentencing decision. Proffitt v. Florida, supra. See Page v. State, (1980) Ind., 410 N.E.2d 1304; Brandon v. State, (1976) 264 Ind. 177, 340 N.E.2d 756; Love v. State, (1971) 257 Ind. 57, 272 N.E.2d Our review of these various constitution......
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Daniels v. State, No. 380S66
...are taken, no reversible error will ordinarily be found. Rose v. State, (1982) Ind., 437 N.E.2d 959; Page v. State, (1980) Ind., 410 N.E.2d 1304; Abrams v. State, Further questioning of defendant's mother established that she did not remember any juvenile court conviction for burglary but o......
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Brewer v. State, No. 678
...review by this Court of the trial court's sentencing decision. Judy, supra; Proffitt v. Florida, supra; Page v. State, (1980) Ind., 410 N.E.2d 1304; Brandon v. State, (1976) 264 Ind. 177, 340 N.E.2d 756; Love v. State, (1971) 257 Ind. 57, 272 N.E.2d 456. This statute was designed Page 900 t......
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Hill v. State, No. 1084S399
...lack of the required sentencing statement, we may remand to the trial court for written findings. See, e.g., Page v. State (1980), 274 Ind. 264, 410 N.E.2d 1304; Abercrombie v. State (1981), 275 Ind. 407, 417 N.E.2d 316. We have affirmed sentences in numerous cases, without remand for a sep......
-
Judy v. State, No. 580S128
...appellate review by this Court of the trial court's sentencing decision. Proffitt v. Florida, supra. See Page v. State, (1980) Ind., 410 N.E.2d 1304; Brandon v. State, (1976) 264 Ind. 177, 340 N.E.2d 756; Love v. State, (1971) 257 Ind. 57, 272 N.E.2d Our review of these various constitution......
-
Daniels v. State, No. 380S66
...are taken, no reversible error will ordinarily be found. Rose v. State, (1982) Ind., 437 N.E.2d 959; Page v. State, (1980) Ind., 410 N.E.2d 1304; Abrams v. State, Further questioning of defendant's mother established that she did not remember any juvenile court conviction for burglary but o......
-
Brewer v. State, No. 678
...review by this Court of the trial court's sentencing decision. Judy, supra; Proffitt v. Florida, supra; Page v. State, (1980) Ind., 410 N.E.2d 1304; Brandon v. State, (1976) 264 Ind. 177, 340 N.E.2d 756; Love v. State, (1971) 257 Ind. 57, 272 N.E.2d 456. This statute was designed Page 900 t......
-
Hill v. State, No. 1084S399
...lack of the required sentencing statement, we may remand to the trial court for written findings. See, e.g., Page v. State (1980), 274 Ind. 264, 410 N.E.2d 1304; Abercrombie v. State (1981), 275 Ind. 407, 417 N.E.2d 316. We have affirmed sentences in numerous cases, without remand for a sep......