Tuggle v. State, 1082S405
| Decision Date | 12 January 1984 |
| Docket Number | No. 1082S405,1082S405 |
| Citation | 457 N.E.2d 1094 |
| Parties | Gary TUGGLE, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). |
| Court | Indiana Supreme Court |
Anthony V. Luber, South Bend, for appellant.
Linley E. Pearson, Atty. Gen., of Ind., Stephan E. Wolter, Deputy Atty. Gen., Indianapolis, for appellee.
The defendant, Gary Tuggle, was convicted at a bench trial of child molesting, a Class B felony, Ind.Code Sec. 35-42-4-3 (Burns 1983 Supp.) and was sentenced to the Indiana Department of Corrections for a period of eleven years. He raises the following three issues in this direct appeal:
1. Whether the trial court erred in finding the victim competent to testify;
2. Whether there was sufficient evidence to sustain the conviction; and
3. Whether the sentence imposed by the trial court is manifestly unreasonable.
A brief summary of the facts from the record most favorable to the state shows that on January 14, 1981, the eight-year old victim returned home early from school and was alone in her house with defendant. Defendant was her mother's boyfriend and had been living in the house for a few weeks prior to this incident. The victim was on a couch in the living room because she had a headache. Defendant took her upstairs to her mom's room where he took his clothes off. He then undressed the victim and sat her on his chest while he lay on his back on the bed. He performed cunnilingus and anal intercourse on the victim.
The victim was examined about two weeks later by a physician, Dr. Jenson. He found multiple scars in the victim's rectum which he felt were caused by forced rectal intercourse and which would have occurred more than one week prior to his examination. At a preliminary hearing, the court determined that the victim knew the difference between telling the truth and telling a lie and that she understood the nature and consequence of an oath.
Defendant first contends that the trial court erred in finding that the victim was competent to testify. The record shows that she was nine years old and in the third grade at school at the time of the trial. Our statute establishes a presumption of incompetence for children under ten years of age "unless it appears that they understand the nature and obligation of an oath." Ind.Code Sec. 34-1-14-5 (Burns 1983 Supp.).
In this case, the victim was questioned by both the prosecutor and defense counsel about her understanding of an oath and the difference between telling the truth and telling a lie. She testified that she knew the difference between the truth and a lie. She stated that she knew she would "get in trouble" and "be grounded" or "go to jail" if she told a lie. She also said that she understood that taking an oath meant that you promised to tell the truth. The following colloquy then took place between the victim and the trial judge.
This was sufficient evidence to show that the victim knew the difference between telling a lie and telling the truth and knew that she would be punished for telling a lie. This Court has consistently held that a 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 court. This determination is reviewable only for a manifest abuse of discretion. Staton v. State, (1981) Ind., 428 N.E.2d 1203; Holder v. State, (1979) 272 Ind. 52, 396 N.E.2d 112; Buttram v. State, (1978) 269 Ind. 598, 382 N.E.2d 166.
There was sufficient evidence here to show that the victim understood the nature and obligation of an oath. The trial court did not abuse its discretion in finding the victim competent to testify.
Defendant next alleges that there was not sufficient evidence to sustain the verdict. In this case, the state had to prove that defendant performed or submitted to sexual intercourse or deviate sexual conduct with a child under twelve years of age to establish the offense of child molesting. Ind.Code Sec. 35-42-4-3(a) (Burns 1979 Repl.). Deviate sexual conduct is defined as "an act of sexual gratification involving a sex organ of one person and the mouth or anus of another person." Ind.Code Sec. 35-41-1-2 (Burns 1979 Repl.).
It is well settled that the uncorroborated testimony of the prosecuting witness is sufficient to sustain a conviction for child molesting even though the victim is a minor. Jones v. State, (1983) Ind., 445 N.E.2d 98; Stewart v. State, (1982) Ind., 437 N.E.2d 1328; Snider v. State, (1980) Ind., 412 N.E.2d 230. It is also axiomatic that as a court of review we will neither judge the credibility of witnesses nor reweigh the evidence. Rather, we will look only to that evidence most favorable to the state and all reasonable inferences to be drawn therefrom. If there is substantial evidence of probative value to support the conclusion of the trier of fact, the verdict will not be overturned. Muse v. State, (1981) Ind., 419 N.E.2d 1302; Wofford v. State, (1979) 271 Ind. 518, 394 N.E.2d 100; Poindexter v. State, (1978) 268 Ind. 167, 374 N.E.2d 509.
Here, the victim's age of nine years was established at the competency hearing which immediately preceded the trial to the court. The victim testified that she was alone in her home with defendant on January 14, 1981, and that he "licked my privates" and "put his penis in my butt hole." In addition, the physician who examined the victim testified that he found multiple scars in her rectum which he felt were caused by...
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Mahla v. State
...this Court has held convictions for child molesting may be sustained on the uncorroborated testimony of the victim. Tuggle v. State (1984), Ind., 457 N.E.2d 1094, 1096-97 and authorities cited; Stewart v. State (1982), Ind., 437 N.E.2d 1328. Comparatively minor inconsistencies in the victim......
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...the record must disclose what factors were considered by the judge to be mitigating or aggravating circumstances. Tuggle v. State, (1984) Ind., 457 N.E.2d 1094. When a sentence is within statutory limits, this Court is not at liberty to set aside or alter the sentence unless the record indi......
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...acknowledges that convictions for child molesting may be sustained on the uncorroborated testimony of the victim. Tuggle v. State (1986), Ind., 457 N.E.2d 1094, 1096-1097. Minor inconsistencies in the victim's testimony go the witness's credibility which is for the trier of fact to determin......
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...of the specific crime and the relation of the sentence imposed to the objectives which will be served by that sentence. Tuggle v. State, (1984) Ind., 457 N.E.2d 1094; Garringer v. State, (1983) Ind., 455 N.E.2d 335; Washington v. State (1981) Ind., 422 N.E.2d 1218. When a sentence is within......