LeMaster v. StateLeMaster v. State
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- Before:
- Shepard
When a parolee commits acts which give rise to multiple convictions, does
Appellant Frank LeMaster, Jr., was convicted of two counts of child molesting, one as a class B felony and one as a class C felony,
The evidence at trial showed that LeMas-ter was the live-in babysitter fоr five children whose parents worked during the day. During his nine months in the home, Le-Master molested two of the girls, ages 6 and 10 at the time, and a boy, age 4. He showed pornоgraphic movies to at least one of the victims.
LeMaster, who weighed 270 pounds, threatened the younger children with physical harm if they revealed his attacks. He warned the 10-year-old girl to keep silent or he would tell her parents that she begged him to go to bed with her. After LeMaster left the home, the parents learned what had happened and contacted police.
I. Consecutive Sentences
LeMaster committed the present offenses while he was on unsupervised parole frоm a life sentence for a 1957 Kentucky armed robbery. In sentencing LeMaster for the three convictions at bar, the trial court took note of
(a) Except as provided in subsection (b) of this section, the court shall determine whether terms of imprisonment shall be served concurrently or consecutively.
(b) If a person commits a crime:
(1) After having been arrested for another crime, and
(2) Before thе date he is discharged from probation, parole, or a term of imprisonment imposed for that other crime:
the terms of imprisonment for the crimes shall bе served consecutively, regardless of the order in which the crimesg®are tried and sentences are imposed.
The record clearly shows that the trial сourt wanted to impose concurrent sentences for the present crimes because Le-Master was 47 years old and in ill health. Nonetheless, the cоurt imposed consecutive sentences after concluding that LeMaster‘s status as a parolee made doing so mandatory under
That statute addressеs the problems inherent in sentencing a defendant who com- | mits a crime while on parole. The new conviction may constitute a parole violation for which the defendant could be returned to prison. In such a case,
In LeMaster‘s case, his sentences for the present crimes must be served consеcutively to any time that he is required to serve as a result of his parole violation. We remand this case to allow the trial court to do what it wanted in the first рlace: impose concurrent sentences for the three present offenses, to be served consecutively to any Kentucky time. 1
IL Error in Instructions
The trial court twiсe charged the jury with the legal definition of “knowing ly.” LeMaster alleges such repetition improperly emphasized the element of intent and thus was so prejudicial as to deny a fair trial. While the repetition was unnecessary, LeMaster‘s claim of undue prejudice is unpersuasive. “Knowingly” is a term of art under the Indiana Cоde and thus requires definition when used in an
III Child Witness
LeMaster also alleges error in the triаl court‘s determination that the younger of the two girls, who was seven years old at the time of trial, was a competent witness. After she was sworn and took the stand, the trial court questioned the child as follows:
COURT: You understand (name) you‘ve taken an oath to tell the truth. Do you understand that?
WITNESS: No
WITNESS: Well do you understand I had you swear to tell the truth. Do you understand that is an oath?
WITNESS: Yes
COURT: Now will you tell the truth in everything you say in the Courtroom from now on?
WITNESS: Yes
COURT: Do you think that anything will happen to you if you don‘t tell the truth?
WITNESS: Yes
COURT: What do you think will happen to you if you don‘t tell the truth? Will it be good or will it be bad?
WITNESS: A wackin‘.
COURT: Pardon?
WITNESS: A wackin‘.
COURT: Get a wackin, huh? what you said? Is that
WITNESS: Yes
COURT: Do you think something bad will happen to you, is that what you are telling me?
WITNESS: Yes
The court then requested her age, birth-date, name, school and grade. The child did not know her birthday but otherwise answered the questions. “Now, are you going to tell the truth in everything you say here from now on?” the cоurt then asked. The child responded, “Yes.”
The prosecutor subsequently questioned the child in greater depth about her knowledge of an oath and the meaning оf truth. The child was unclear about the definition of an oath, but she discerned the difference between truth and falsehood. She once again promised to tеll the truth.
LeMaster claims the trial court‘s questioning of the child was insufficient to determine her competency as a witness. Children under 10 years old are incompеtent witnesses “unless it appears they understand the nature and obligation of an oath.”
There is no prescribеd form for this type of questioning. Scales v. State (1975), 165 Ind.App. 588, 333 N.E.2d 814. The trial court‘s determination of competency has been affirmed when it asked only three questions. Id. It is, of cоurse, the nature of the questions and the responses which form the foundation for the trial court‘s determination of competency, rather than the number of quеstions posed. Our deference to the trial court‘s conclusion has been expressed as follows:
“In reviewing such a determination, we recognize that our examination of the transcribed record of the questioning cannot compare with the trial court‘s personal presence at the hearing as a basis for resolution of the issue. We, therefore, entrust this determination to the discretion of the trial court and will reverse only where we find clear error, wherе there is no evidence from whichthe trial court could have found that the child understood the nature and obligation of an oath.” Johnson v. State, 265 Ind. at 692, 359 N.E.2d at 528.
In this case, thе trial court asked a number of questions to which the child responded with answers indicating she knew the difference between the truth and a lie and that she believed shе was under a compulsion to tell the truth. The child‘s responses to the prosecutor‘s questions created a similar inference. While she clearly did not understаnd the meaning of the word “oath,” a child does not need to be able to define that term to be a competent witness. Id. Applying the standard enunciated in Johnson, we conclude that there was evidence from which the trial court could have determined that the child was competent and accordingly find no abuse of discretion.
This cause is ordered remanded for entry of new sentences. The trial court is affirmed on all other issues.
GIVAN, C.J., and DeBRULER, PIVAR-NIK and DICKSON, JJ., concur.
Notes
. The record does not reflect whether Kentucky authorities have taken any action against Le-The Kentucky proceedings-or lack Master. thereof-will only affect the starting date, not the validity, of LeMaster‘s concurrent sentences.