Short v. State, 49A02-8903-CR-114
| Decision Date | 10 January 1991 |
| Docket Number | No. 49A02-8903-CR-114,49A02-8903-CR-114 |
| Citation | 564 N.E.2d 553 |
| Parties | Forrest D. SHORT, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). 1 |
| Court | Indiana Appellate Court |
S. Sargent Visher, Choate Visher & Haith, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., Amy Schaeffer Good, Deputy Atty. Gen., Indianapolis, for appellee.
Forrest D. Short appeals three convictions after a trial before the bench arising out of a sexual assault committed against his five-year-old daughter, S.S. Two of the convictions are for child molesting, one as a class B (intercourse) and the other as a class C (fondling) felony. The third conviction is for incest as a class D felony. The evidence supports only one touching from which all three convictions flow. 2 Short received concurrent sentences of twenty, five, and two years respectively. Short raises two issues, neither of which constitutes reversible error.
The evidence most favorable to the judgment indicates that in December of 1987, Short lived in one-half of a double house. On December 12, 1987, his five-year-old daughter, S.S., stayed with him for an overnight visitation. Between 11:00 p.m. that night and 1:30 a.m. the next morning, Short's neighbors in the other half of the double and their guests heard S.S. crying in Short's half of the double. The next day Additional facts are supplied as necessary.
Short's neighbors questioned S.S. who told them that Later, S.S. told her grandmother that "... my daddy hurt me ... he put his wiener in me and it hurt again and again."
properly qualified to testify?
At the time this case was tried, IND.CODE 34-1-14-5 provided that children under ten years of age were not competent to testify "unless it appears that they understand the nature and obligation of an oath." 3 In Russell v. State (1989), Ind., 540 N.E.2d 1222, our supreme court held that the statutory presumption of incompetence is overcome when a child demonstrates 1) she understands the difference between telling a lie and telling the truth, 2) she knows she is under compulsion to tell the truth, and 3) she knows what a true statement actually is. Our supreme court held in Russell that the trial court abused its discretion by qualifying the witness without a sufficient foundation for the third element above. However, the court held the error was harmless because an examination of the entirety of the child's testimony demonstrated she understood what a true statement actually was.
In the case at bar, the trial court qualified S.S. upon the following testimony (pertinent part only):
Q. ... [S.], is it a good thing or is it a bad thing to tell the truth?
A. A good thing.
Q. A good thing. And is it a good thing or a bad thing to tell a lie?
A. A bad thing.
Q. A bad thing. And what happens if you tell Mommy a lie? What does she do?
A. She either sends me to my room or sends me to time out.
Q. Sends you to your room, and what else does she do?
A. Or to time out.
Q. Or to time out. Do you get to watch T.V. if you tell a lie?
A. No.
Q. No. Do you get to go out and play if you tell a lie?
A. No.
* * * * * *
Q. Why do you think it's a bad thing to tell a lie?
A. Because sometimes they might believe you and it won't be right.
The above testimony demonstrates that S.S. understood the difference between a truth and falsehood and that she believed that punishment follows from falsehoods. We hold the above testimony is sufficient to establish that S.S. appreciated the moral content of true and false statements and that she was under compulsion to tell the truth.
However, as in Russell, the trial court in the present case erred by failing to establish that S.S. knew what a true statement actually was. The determination of whether the witness knows what the truth actually is involves a determination of whether the witness knows the difference between truth, other connotations of truth that may not satisfy this element, and fantasy. Id.; Jarrett v. State (1984), Ind., 465 N.E.2d 1097.
However, we hold that, as in Russell, the error is harmless because the missing element in the preliminary determination of the witness's competency was satisfied by her later testimony. During the evidentiary phase of S.S.'s testimony, the following exchange between the prosecutor and S.S. took place:
Q. And what did Daddy tell you? Did Daddy tell you something that wasn't true that time?
A. Yes.
Q. What did he say?
A. He said that it wouldn't--
Q. That it wouldn't. That it wouldn't what, honey?
A. It wouldn't hurt, but it did.
The above exchange demonstrates that S.S. could appreciate the truth/reality of pain. Therefore, the error in the qualification of S.S. is harmless. We find no reversible error.
Short attacks various aspects of the sufficiency of the evidence. He argues 1) the evidence is insufficient to show a penetration of S.S.'s vagina by his penis to support the two convictions based on an alleged act of intercourse; 2) the State failed to present evidence that Short committed the touching with the intent to gratify his sexual desires; and 3) no evidence was presented that Short knew that S.S. was his daughter as required to support the incest conviction.
In reviewing the sufficiency of the evidence, we consider the evidence most favorable to the verdict together with all reasonable inferences which may be drawn from that evidence and, if there is substantial evidence of probative value to support each element of the offense, the judgment will be affirmed. Fox v. State (1979), 179 Ind.App. 267, 384 N.E.2d 1159. The reviewing court neither weighs the evidence nor judges the credibility of the witnesses. Traxler v. State (1989), Ind., 538 N.E.2d 268. Substantive evidence of probative value, such as is necessary to support a conviction, has qualities of directness and freedom from uncertainty. Vuncannon v. State (1970), 254 Ind. 206, 258 N.E.2d 639. The function of an appellate court in a criminal appeal is to determine whether or not evidence of guilt is substantial and of probative value, which requires more than a mere scintilla of evidence. Id. Evidence which only tends to support a conclusion of guilt is insufficient to sustain a conviction, as evidence must support the conclusion of guilt beyond a reasonable doubt. Id.
S.S.'s testimony at trial regarding Short's sexual assault upon her reads as follows in pertinent part:
Q. Good girl. I knew you could. Did Daddy touch you in a place that hurt?
A. Yes.
Q. What do you call that, [S.]?
A. My butt.
Q. My--what?
A. My butt.
Q. Say that a little bit louder, as loud as you said yes just a minute ago. My what?
A. My butt.
Q. My butt. And where is that? Can you point? Can you point to that place on you you call your butt?
A. Yeah.
Q. Is it up here on the shoulder?
A. No.
Q. No. Is it down here on your knees?
A. No.
Q. Is it here at your tummy?
A. Kind of.
Q. Is it here at your tummy?
A. Kind of, but you have to go down a little lower.
Q. You have to go down lower. Do you go to the bathroom with your butt?
A. Yes.
Q. Is that right there between your legs?
A. No.
Q. Huh?
A. No.
Q. Tell me real loud.
A. No.
Q. Where is that, sweetie? Is that right down here?
A. No.
Q. Right below your waist? Where is that? Is that lower than your waist: Where is that, sweetie? Where is your butt?
A. It's right--
Q. Do you go to the bathroom with your butt?
A. Yes.
Q. What did you do when Daddy touched you with--on the butt?
A. I cried.
Q. What did you do?
A. Cried.
Q. You cried. Did you cry a lot or did you just cry a little bit?
A. A lot.
Q. You did cry a lot. And what did Daddy touch you with?
A. His front butt.
Q. His front butt....
A doctor examined S.S. on December 14, 1987, and testified at trial as follows:
apparently, later on [S.S.] had told her grandmother that her father had quote hurt her, and attempted to put his penis in her quote butt. There was some question at that point in time whether she was referring to her rectum or her vagina.
* * * * * *
A. Well, the examination pretty much, except for the genital examination, was normal. The genital examination showed that [S.S.] was prepubertal, had no sexual development. There were--There was evidence of trauma to the hymen. There were interruptions or breaks in the hymen, and in looking at the vaginal opening in the hymen as a clock for--as reference points at one and at six and at eleven o'clock there were interruptions from what we would normally expect to see. Also, the hymenal edges normally are thin, the tissue is thin, edges on [S.], the edges were thickened and more rounded. This is basically consistent with trauma of some type. Also, the opening end of the vagina, through the hymenal opening was approximately twelve by eight millimeters on the horizontal plane, which is a little, probably about three-fourths of an inch. And this is enlarged for what we normally expect to see for a youngster her age, approximately twice as large as we would expect to see. That's pretty nearly all of the positive findings that I found at that point in time.
Q. Based on your professional expertise, Dr. Merk, in the field of child sexual abuse and pediatrics, would you say that this child's condition at the time of her examination was consistent with the history that you obtained with regard to the alleged sexual abuse?
A. Yes.
Q. Would you please explain your opinion to the Court?
A. Well, once again, sexual abuse can take all sorts of forms. The most of what I was seeing, all of what I was seeing was pretty much trauma to the hymen, and pretty much this meets--is almost always intentional in one way or another. Straddle injuries, fall injuries and the like...
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