Scales v. State, No. 2--1073A228
| Docket Nº | No. 2--1073A228 |
| Citation | 333 N.E.2d 814, 165 Ind.App. 588 |
| Case Date | September 03, 1975 |
| Court | Court of Appeals of Indiana |
Page 814
v.
STATE of Indiana, Appellee (Plaintiff below).
Rehearing Denied Oct. 24, 1975.
[165 Ind.App. 590]
Page 816
Harriette Bailey Conn, Public Defender, Eugene C. Hollander, Deputy Public Defender, Indianapolis, for appellant.Theodore L. Sendak, Atty. Gen., John H. Meyers, Deputy Atty. Gen., Indianapolis, for appellee.
STATON, Presiding Justice.
Scales was tried by the court and found guilty of assault and battery with intent to gratify sexual desires. He was sentenced to a term of not less than two nor more than twenty-one years in the Indiana State Prison. On appeal, he raises the following issues:
Issue One: Sufficiency of the Evidence.
Issue Two: Error in allowing the prosecuting witness to testify.
We affirm the judgment of the trial court.
I.
Sufficiency of the Evidence
In considering the sufficiency of the evidence, this Court will not weigh the evidence nor determine the credibility of the witnesses. We will consider only that evidence most favorable to the State and the reasonable inferences to be drawn therefrom. As long as there is substantial evidence of probative value from which the trier of fact could reasonably infer that the defendant was guilty beyond a reasonable doubt, the conviction will be affirmed. Johnson v. State (1972), 257 Ind. 634, 277 N.E.2d 791; Shultz v. State (1973), Ind.App., 291 N.E.2d 712.
[165 Ind.App. 591] On August 4, 1969, Theresa Swain was babysitting with the seven year old prosecutrix and the prosecutrix' three younger sisters. She observed that the prosecutrix was having difficulty walking, and also the girl said that she was sick. Theresa called her mother who came over and examined the girl. Mrs. Swain noticed that the prosecutrix' genital area was red, bruised and swollen. She gave the girl a bath and took her to see a doctor. Dr. Alvin Bridges testified that he examined the prosecutrix on the morning of August 4, 1969 and discovered that her thigh muscles were sore and tender. While the vaginal area did not disclose any distinct discoloration, swelling or tearing, he could not rule out
Page 817
the possibility of subcutaneous bruising. A laboratory test for the presence of sperm was negative.The prosecutrix' mother was in the hospital and had left her children in Scales' care. Scales had been living with the mother and the four girls for approximately nine months. The prosecutrix testified that after she went to bed on August 3, 1969, Scales came into the bedroom she shared with her sisters and carried her into her mother's room. The prosecutrix testified that Scales laid her on the bed, removed her pajamas and panties and placed both his hand and penis on her genital area. He then carried her back to her bedroom.
To sustain Scales' conviction for assault and battery with intent to gratify sexual desires under IC 1971, 35--1--54--4; Ind.Ann.Stat. § 10--403 (Burns Supp.1974), the evidence must prove beyond a reasonable doubt both the overt act of touching and the specific intent at the time of the touching to gratify sexual desires. 1 Markiton [165 Ind.App. 592] v. State (1957), 236 Ind. 232, 139 N.E.2d 440. Scales contends that there is insufficient evidence of both the touching and the intent. However, the testimony of the prosecuting witness in this case is sufficient to establish both the overt act and the accompanying specific intent to gratify sexual desires. It is the law in Indiana that a conviction for assault and battery with intent to gratify sexual desires may be sustained on the uncorroborated testimony of the prosecuting witness, even when the prosecuting witness is a minor. Shultz v. State, supra; Tapp v. State (1971), 256 Ind. 422, 269 N.E.2d 367. Additionally, the prosecutrix's testimony in this case is not uncorroborated. Both Mrs. Swain's and Dr. Bridges' testimony concerning the prosecutrix' physical condition are corroborative. Scales is asking this Court to weigh the evidence and the credibility of the witnesses. This we may not do. Simmons v. State (1975), Ind.App., 324 N.E.2d 513. There was sufficient evidence to support Scales' conviction.
II.
Testimony of the Prosecutrix
Scales objected at trial to the testimony of the prosecutrix on the ground that she was incompetent to testify because of her age. At the time of trial, the prosecutrix was eight years old. IC 1971, 34--1--14--5 (Burns Code Ed.) provides:
'The following persons shall not be competent witnesses:
Second. Children under ten (10) years of age, unless it appears that they understand the nature and obligation of an oath.'
[165 Ind.App. 593] The determination of whether a child under the age of ten understands the nature and obligation of an oath is within the discretion of the trial judge, who has the opportunity portunity to observe the general maturity
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Carter v. State, No. 2-178A5
...witness, even when such witness is a minor." Smith v. State, (1978) Ind.App., 372 N.E.2d 511, 516. See Scales v. State, (1975) 165 Ind.App. 588, 333 N.E.2d 814. Moreover, Carter erroneously concludes the victim's testimony was uncorroborated. The prosecutrix's mother testified to a telephon......
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Hunter v. State, No. 1--976A168
...of the meaning of taking an oath has been delegated to the discretion of the trial court. This court in Scales v. State (1975), Ind.App., 333 N.E.2d 814 stated the standard of reviewing the trial court's discretion in the following 'The determination of whether a child under the age of ten ......
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Holder v. State, No. 878S162
...the trial judge found her competent to testify. We do not find that he abused his discretion in doing so. Scales v. State, (1975) 165 Ind.App. 588, 333 N.E.2d Appellant claims the State failed to prove beyond a reasonable doubt that penetration occurred. It is true that penetration by a pen......
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Morrison v. State, No. 49A02-0403-CR-216.
...we note, too, that the uncorroborated testimony of the victim is sufficient to sustain a criminal conviction. Scales v. State, 165 Ind.App. 588, 592, 333 N.E.2d 814, 817 7. On January 12, 2005, the United States Supreme Court decided United States v. Booker, 543 U.S. ___, 125 S.Ct. 738, 160......
-
Carter v. State, No. 2-178A5
...witness, even when such witness is a minor." Smith v. State, (1978) Ind.App., 372 N.E.2d 511, 516. See Scales v. State, (1975) 165 Ind.App. 588, 333 N.E.2d 814. Moreover, Carter erroneously concludes the victim's testimony was uncorroborated. The prosecutrix's mother testified to a telephon......
-
Hunter v. State, No. 1--976A168
...of the meaning of taking an oath has been delegated to the discretion of the trial court. This court in Scales v. State (1975), Ind.App., 333 N.E.2d 814 stated the standard of reviewing the trial court's discretion in the following 'The determination of whether a child under the age of ten ......
-
Holder v. State, No. 878S162
...the trial judge found her competent to testify. We do not find that he abused his discretion in doing so. Scales v. State, (1975) 165 Ind.App. 588, 333 N.E.2d Appellant claims the State failed to prove beyond a reasonable doubt that penetration occurred. It is true that penetration by a pen......
-
Morrison v. State, No. 49A02-0403-CR-216.
...we note, too, that the uncorroborated testimony of the victim is sufficient to sustain a criminal conviction. Scales v. State, 165 Ind.App. 588, 592, 333 N.E.2d 814, 817 7. On January 12, 2005, the United States Supreme Court decided United States v. Booker, 543 U.S. ___, 125 S.Ct. 738, 160......