Tuggle v. State, 1082S405

• Docket Nº: No. 1082S405
• Citation: 457 N.E.2d 1094
• Case Date: January 12, 1984
• Court: Supreme Court of Indiana

Page 1094

457 N.E.2d 1094 Gary TUGGLE, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below). No. 1082S405. Supreme Court of Indiana. Jan. 12, 1984.

Page 1095

Anthony V. Luber, South Bend, for appellant.

Linley E. Pearson, Atty. Gen., of Ind., Stephan E. Wolter, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

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.

Page 1096

I.

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.

THE COURT: "..., in school, does your teacher ever let you just make up stories and write them for entertainment?"

THE WITNESS: "Yes."

THE COURT: "You understand that this is not the schoolroom, this is different here, that you can't make up stories or pretend stories, do you understand?"

THE WITNESS: "Yes."

THE COURT: "And the oath that I gave you when I had you raise your right hand and swear to tell the truth, that means that you have to tell the truth and nothing but the truth, can you do that?"

THE WITNESS: "Yes."

THE COURT: "You won't make up any pretending stories?"

THE WITNESS: "No."

THE COURT: "As I understood it, you said that you would get grounded, if you lied, by your Mom?"

THE WITNESS: "Yes."

THE COURT: "Would it be wrong for you to lie about something even knowing that you might not get caught at it?"

THE WITNESS: "Yes."

THE COURT: "Do you think that is wrong or right?"

THE WITNESS: "Wrong."

This was sufficient evidence to...