*1 necessary INSTRUCTION NO. 15f lief Tracy that such was to defend from an attack. may person A use reasonable force to against defend himself another’s imminent perceive I prejudice no and therefore illegal He reasonably use force. must would affirm the conviction. honestly believe that force is neces- sary to resist attack. He cannot use ex- disproportionate
cessive force or amount
of force under the circumstances. question ap- existence of an
parent danger and the amount of force
necessary force, only to resist can be de- standpoint from
termined of the defen- dant, at the time existing and under the NEWSOME, Appellant- Steven G. circumstances. The defendant use Defendant, may reasonably such force as necessary be apparent
to resist such attack or attack. He will not be accountable for an error in Indiana, Appellee-Plaintiff. STATE of judgment as to the amount of force neces- No. 20A03-9701-CR-25. sary, provided reasonably] he acted honestly. One who was in apparent no Appeals Court of of Indiana. danger ground and had no reasonable Oct. apprehension danger cannot raise this defense.
Record at 79.
INSTRUCTION NO. 15h
Reasonable belief means such belief as ordinary person pos- reasonable would existing
sess under all the circumstances
and as from perspective viewed of such
person within the total set of circum- existing particular
stances in the case.
Reasonable belief does require that the
danger perceived existed, actually but
only that reasonably perceived it was
existing circumstances, under all the in-
cluding any particular knowledge pos- However,
sessed the defendant.
reasonableness of the belief must be tested standpoint person of a of reason- sensibilities, being
able or unreasonably
excitable, unreasonably lacking per-
ceptive abilities.
Record at 81.
Carson’s defense consisted of the claim justified
that he stabbing Cary Ran-
som defending Tracy. because he was I that,
believe together, taken Instructions 15h,
15g, adequately and 15f informed the acquit that it could Carson if it found employed he reasonable force in stab-
bing Ransom, his reasonable be- *2 Holbrook, Goshen, Appellant E.
Neil I. Defendant. Competence Witness Modisett, General, Attorney Jeffrey A. Elfenbaum, Deputy Attorney F. Randi Gen- challenges the trial court’s de eral, Appellee-Plaintiff. Indianapolis, for victim, termination that the seven-year-old girl, at trial.
OPINION
challenging the trial
competency
court’s
de
termination,
argues
Newsome
that no evi
STATON, Judge.
presented
dence was
to indicate that
the
appeals
Steven Newsome
his
J.
conviction
victim understood the difference between the
by jury
a
for two counts of
Molesting,
Child
appears
truth and a he.
It
that Newsome
Felony
the first count Class B
and
on
relies
this court’s decision in Casselman v.
Felony.
count a
second
Class C
The first
State, 582
(Ind.Ct.App.1991).
N.E.2d 482
In
charge
count was based on a
that Newsome
Casselman,
this court held that before a
performed
victim,
cunnilingus on the
and the
competent,
child will be deemed
it must be
charge
second count was based on the
(1)
established that the child
understands the
vaginal
Newsome fondled the victim’s
area.
telling
difference between
telling
lie and
presents
Newsome
three issues for our re-
(2)
truth,
knows she
compul
is under a
view:
(3)
truth,
sion to tell the
and
knows what a
I.
properly
Whether the trial court
ad-
actually
true statement
(citing
is. Id. at 435
victim,
judged
seven-year-old
(Ind.Ct.
553,
Short v.
girl, competent
testify
to
at
trial.
App.1991));
see also Russell v.
II. Whether there was sufficient credi-
(Ind.1989).
1222, 1224
N.E.2d
presented
ble evidence
at
trial
justify Newsome’s conviction for the
responds
The State
that sufficient evidence
Molesting.
crime of Child
presented
to indicate that
the victim
understands the difference between the truth
III. Whether
committed
he,
by
and a
noting that under Indiana
during
misconduct
closing argument.
persons
Rule of Evidence 601
pre-
all
are
We affirm.
competent
testify,
sumed
including chil-
During August
1995,
of
Newsome
lived
Appellee’s
dren.
Brief at 9. In light of the
victim,
the same household with the
a six-
partial
State’s
rebanee on Ind.Evidence Rule
year-old girl,
family.
and the victim’s
On
601 and the trial court’s rebanee on this rule
22, 1995,
August
Anglin
Officer Michael
finding
as a basis for
the victim’s
Nappanee City
Department
Police
began
competent,1 we must first determine what
investigating allegations that Newsome mo-
impact,
any,
if
Ind.Evidence Rule 601 has on
day,
lested the victim. Later that
previous
our
decisions regarding
compe-
police
came
along
station
with Rever-
testify.
tence of children to
Keene,
end Bill
who
originally reported
had
molestation,
speak
order to
with Offi-
The Indiana Rules of Evidence were first
Anglin.
signing
cer
After
rights
an advice of
made effective in Indiana courts as of Janu-
form, Newsome
fondling
admitted
the vic-
1,
See,
ary
Court,
Indiana Rules of
area,
vaginal
tim’s
ques-
further
(1997).
Indiana Rules
Evidence
tioning by
Anglin
Officer
admitted to at-
provides:
Ind.Evidence Rule
“Every
tempting
perform
oral sex on the victim.
person
competent
except
be witness
trial,
provided
otherwise
At
these
victim testified
rules or
act of
that Newsome
vagina,
the Indiana
Assembly.”
touched her
on the
General
inside and the
Ind.Evi-
outside,
added).
with
fingers
(emphasis
his
dence Rule 601
his mouth.
This rule
The victim
years
phrased
was seven
is not
presumption
old
the time
as a
compe-
tence;
she testified.
its
language requires
bteral
that ab
said,
overruling
objection
1. In
Newsome’s
presumed
at trial to
"All
witnesses are
un-
competence
testify,
judge
victim
der the new rules.” Record at 359.
split
is a
in the federal courts re
competent unless
There
be determined
witnesses
of Federal Evidence Rule
garding the effect
an act
Rule of Evidence
another Indiana
majority of federal courts
601. The
Assembly provides otherwise.
of the General
that a
have considered the issue
held
1990,
a statute
had
recently as
Indiana
As
obligation to ensure
trial court still has an
age
under the
that children
presumed
are
that minimum standards
testify.
incompetent to
of 10 were
Ind.Code
See,
testify.
allowing a
met before
witness
(1988). However,
provision
§ 34-1-14-5
3 Weinstein’s
Assembly. Act
General
repealed
Federal
Evidenoe,
601.03[l][a],
p.
§
601-9 n. 1.
United
20,
37,
§
Pub.L.
of March
(4th Cir.1984),
Odom,
regardless age, happens are if teh the Q Okay. What However, testify. a child must still truth? he has the knowl- demonstrate to the court Nothing. A required by the Russell court edge before * * * * * * is established.... Record at 357. (citations Casselman, N.E.2d at 435 added). exchange, the omitted) upon this The Russell Based (emphasis lay proper foundation for failed to to show that “the required the record Although the competency of this witness. be- understood the difference child witness the difference he, that she knew telling a knew victim testified telling truth and tween he, nothing truth, there is the truth and between compulsion to tell he was under truly that she understands actually which indicates what a true statement and knew State, v. Russell, is. Russell at what that difference (citing 540 N.E.2d was.” stances, be con- believe Thornton can we do not cited Bellmore We note that the court also 601. proposition (Ind.1992), adequate precedent reh. sidered v. 601 re- denied, language Ind.Evidence Rule that the proposition and that Bell- for same "presumed,” in adoption quires all witnesses to be prior was decided more sense, competent. shifting burden circum- of Evidence. Under these Indiana Rules (Ind.1989), supreme prior allowing N.E.2d child is harm- court held: less error. child, ... a in order know the nature of present The victim in the case was must, oath, appreciating an in addition to subjected vigorous cross-examination of true and the moral content false state- the defense. Newsome’s counsel asked the ments, what a true statement know actual- conversation, trial, victim about her prior to is_ ly require- this additional [F]or investigator with an from the Children and satisfied, making more than
ment to be
a Family Advocacy Center.
at
Record
375.
T
flat statement like
know what the truth The victim testified that she told the investi
required
is’ would be
of a small child. For
gator that Newsome
privates
touched her
child,
of a small
the case
the term with his mouth. Record at 376-77. Counsel
may
many connotations,
“truth”
in-
played
videotape
then
of the victim’s con
cluding simply
parents
per-
what
or other
investigator,
versation with the
which showed
in authority
say.
sons
Id. at 1224.
that the victim
investigator
did not tell the
that Newsome touched her with his mouth.
The court went on to note that this could be
Record at 385. The victim then admitted
accomplished by asking
give
the child to
investigator
that she did not tell the
about
example
telling
of someone
a lie. Id. at 1225.
orally touching
privates.
her
Rec
enough
It is not
for
child witness to
However,
ord
she continued to main
simply
punished
indicate that she will be
for
tain that Newsome did in fact touch her
lie,
telling
present
as the victim did in the
privates with his mouth. Id.
Although
supreme
case.
court in Baxter
It can be inferred from
exchange
(Ind.1988),
875 guilty beyond testimony insufficiently victim’s find the defendant reason- credible support able doubt. a conviction. The victim testified that Newsome III. vagina her with touching
abused her his fingers Testimony and with his mouth. Prosecutorial Misconduct to sustain a the victim alone is sufficient State, 191, conviction. 583 N.E.2d v. that prosecutor Newsome contends Griffin denied, (Ind.Ct.App.1991), reh. (citing during committed closing argu- misconduct State, 739, N.E.2d Gonzales v. 740-41 ment by making improp- several rebuttal (Ind.1988)). testimony The victim’s was also reviewing er prosecu- remarks. In a claim of Anglin’s testimony corroborated Officer misconduct, torial we must first determine po Newsome’s admissions at the prosecutor’s whether conduct was im- present lice Accordingly, station. the State State, proper. v. 613 N.E.2d Zenthofer ed from which sufficient evidence (Ind.1993). If we determine the conduct guilty could conclude that Newsome was be was improper, must we then determine yond a reasonable doubt. whether all under the circumstances the prosecutor’s placed misconduct the defendant Newsome also contends that the victim position grave in a peril. deciding In credibility lacks she because testified that placed whether grave the defendant was investigator she told an that Newsome peril, probable persuasive we consider the mouth, privates touched her with his when effect of the on jury’s misconduct deci- videotape fact a of the conversation revealed sion. Id. she had not. The victim later admitted dur- ing cross-examination that she did not tell objects first comment Newsome the caseworker that Newsome touched her is, “So, you heard Mr. Newsome’s side of orally. argues Newsome this lack of story through Anglin Officer and Mr. youth, credibility, along her make her I story yeah, Newsome’s fondled her most testimony inherently unbelievable. ly in vagina performed I area and oral A conviction stand on the uncor sex on her as well.” at 421. Record New- roborated evidence of a minor witness. Nel objected during some to this statement State, (Ind.1988). son grounds trial on Officer misstated “impinge jury’s We will not responsi on Anglin’s testimony. Record at 421-22. In bility credibility weigh to assess evi light objection, of this re dence, unless this Court is confronted with said, phrased his “As I comment and recall
inherently improbable testimony,
equivo
or
...
testimony
the officer’s
he said did
cal, wholly
in
uncorroborated
try
anything
ever
to do
oral with her.
[New-
dubiosity.”
credible
Becker v.
says yes,
yeah.”
some]
Record at 422
(Ind.Ct.App.1992)
N.E.2d
(citing
added).
(emphasis
(Ind.
Bedwell v.
ing
prejudicial to the defendant.
subject
to
did not
Newsome
comment
tor’s
improbable
it is
that it had
grave peril since
Any objection
“baloney”
to
comment
is
jury. Zenthofer,
on the
persuasive effect
object to it
waived since Newsome did not
at
at 34.
613 N.E.2d
Zenthofer,
at 34. With
trial.
613 N.E.2d
comment,
to the “smoke”
this state-
respect
pros
argues that the
Newsome also
was not abusive
defense coun-
ment
towards
Anglin’s tes
comment about Officer
ecutor’s
Rather,
merely request
it was
sel.
superi-
implies
timony
improper
is
because
on
jury to focus
the State’s evidence. The
knowledge of the
Newsome relies
case.
or
not improper.
was
remark
Supreme
holding in
Court’s
on the Indiana
Finally,
argues that
State,
N.E.2d 18
v.
Ind.
Kocher
improperly
on the'
prosecutor
commented
de
denied,
(1979),
proposition that a
reh.
testify
failure to
at trial. He
fendant’s
cites
opinion
express
not
prosecutor
following
support of
comments in
this
opinion
upon infor
implies that her
is based
contention:
privy. Id. at
jury
is not
mation to which
up
get
say
You heard this officer
prosecutor’s
on Officer
20. The
comment
reverend,
came in
his
with
[Newsome]
imply that
Anglin’s
does not
We
[New-
his minister.
filled out forms.
knowledge
has
of evidence which
prosecutor
doing
didn’t
what he was
or
some]
know
simply
at
presented
trial.
It is
was not
problems
had
[Newsome]
some
under-
summary
Anglin’s
and a
of Officer
standing
going
what
on? He’d be the
was
evidence,
permissi
that
which is
comment on
crying
attorney.
first one
for an
Record at
See,
v.
580 N.E.2d
ble.
Jarrett
441;
certainly
...
there
has been no
(Ind.Ct.App.1991),
denied.
trans.
suggest
to
that
[Newsome
evidence
claims was
The second comment Newsome
right
gave
he
his
state of mind when
following: “Certainly there’s
improper is the
Anglin.]
his statement
Officer
There’s
suggest
that would
that [Officer
no evidence
not a mental
or
disease
defect defense
anything inappropriate as is
Anglin] did
psychological
You’ve
here.
heard no
evi-
by
in con-
raised
defense counsel
sometimes
dence. Record at 442-43.
voluntary.”
statements that are
nection with
privilege against
Fifth
“The
Amendment
argues that
at 422-23. Newsome
Record
compulsory
is
self-incrimination
violated
improper
because it im-
this statement
when a
makes a
statement
job
get
plies
the “defense counsel’s
is to
subject
by
interpretation
jury
to reasonable
by
insignificant
bringing
his client off
out
as an invitation
draw an adverse inference
Appellant’s
legal
facts and
technicalities.”
from defendant’s silence.” Moore
Brief at 10.
(Ind.1996), reh.
denied.
possible
con-
defendant waives
error
“[A]
complained
Neither
remarks
prosecutor’s closing argument
cerning the
improper
Newsome were
under this stan-
object
argument
fails to
where he
dard.
Zenthofer,
trial.”
877 police competency appropriate. to the made under statute is his statement Such is that it was not not the case. circumstances indicate See, 431-33. Record at It was credible.6 issue, majority’s study Under the of the argument proper to rebut legislature changed specific the portion has by pointing psy- out that contention no of the competency statute on of witnesses concerning chological evidence Newsome’s supreme and the adopted court has a new In presented. Harper state was v. mental rule regarding competency the of witnesses (Ind.1985), the Indiana N.E.2d 508 altering all without the law. It does not prosecutor’s Supreme Court that a com- held legislative body follow that our enrolled an improper was not where it was ment ad- highest judicial body act and our adopted a dressed, totality, in its not to the defendant’s all rule to leave the static. statutory law The testify failure to fail- but defendant’s adoption modification rule priori and the present to to ure evidence substantiate a changed the law. emotionally that his victim claim unbal- (1993 Ed.) § pro- IND.CODE 34-1-14-5 alleged at the time anced of the crime. Id. “persons vides that certain shall not be com- Furthermore, no 511. reasonable petent witnesses.” In its current form the prosecutor’s interpreted could the com- statute sets out those who have received ment, taken in of rebutting the context including confidential communications attor- argument defense that Newsome’s statement neys, physicians, clergy members of the police credibility, inviting to as the lacked wives, husbands and as well as per- insane upon of guilt inference Newsome’s his sons, as those not competent who are wit- Moore, failure at trial. 669 N.E.2d majority, nesses. As the noted until its Therefore, prosecutor’s at 739. we find the repeal 1990, the second subdivision of the improper. comments not to have been presumed incompetency statute of: “Chil- Affirmed. (10) dren years age, under ten of unless it
appears they understand the nature arid ROBERTSON, J., obligation of an oath.” concurs. By repeal its section HOFFMAN, J., in result with concurs children, legislature pre removed the opinion.
separate sumption incompetency. Evid.R. adopted by court, supreme our would still HOFFMAN, concurring in Judge, result. legislature presump allow to retain the Although result, I respect concur in the I however, incompetency; tion legisla fully majority’s dissent from the examination ture has not the section or a sim recodified issue as to of the provision. Thus, ilar the deletion of the pre witness. Ind.Evidenee Rule does presumptive incompetency repre of children competent. that all are sume witnesses change law. sents in the See Joe v. Le (Ind. Thornton bow, (Ind.Ct.App.1996). N.E.2d Ct.App.1995). The onus is a defendant determining legislature in whether competent. that a is not establish interpretations tended courts to retain A compe determination a witness’s as to developed through common law once a stat tency lies within the sound discretion of the revised, ute was noted: Court only trial and is reviewable for a mani language When a statute contains which is fest abuse of that discretion. presume legislature, deleted we majority opinion legislature that the intended the assumes Evid.R. deletion thus, literally; represent change cannot analy- be read in the law. We repealed portion simply sis under the cannot into a statute lan- ‘re-read’ attorney following right during frame 6. Newsome’s said was not in of mind. closing argument, determining weight proper "In He was in the state of mind in order statement, given you give proper say to a in order to what be defendant's should statement may happened." consider all under which it not have Record at circumstances made_ suggest Now I would that Mr. *10 clearly has been aban- analysis, which the old [Citations has been deleted. which guage doned, to the bench and will cause confusion omitted.] rule, a child the new in Indiana. Under bar opponent the competent witness unless is a analysis Further, majority’s breaks the testimony raises issue and demon- the the scrutiny. The rule’s pragmatic under down incompeteney. strates children exclude presumptively failure into special inquiry their prohibit Here, not the colloquy does the between the issue testifying prior to when competency that the witness the witness revealed and rule, The read by a defendant. is raised between truth and a distinction understood repeal of the subdivision the conjunction with articu- was able to falsehood. The witness children the regarding telling a consequence for unpleasant late an arbitrary statute, previous the abandoned properly reviewed for a manifest lie. When rule age, in favor of a lines drawn Thornton, discretion, see abuse competency until otherwise assumes which not apparent that Newsome did it is opponent of the testi- the demonstrated incompeteney, and the witness’s establish mony. competency must finding as to trial court’s be affirmed on that basis. investigation of the issue is majority’s The re- incorrect. It concludes patently in- presuming
pealing provision the former pre- instituting a rule which
competency and legislature nor competency neither the
sumes an intent to alter signaled supreme lay proponent of the witness to need for a establishing com- very specific foundation INC., ERECTORS, INDIANA First, majority engrafts petency. Appellant-Defendant, requiring 601 the abandoned burden Evid.R. proponent of a to establish competency, then of that witness’s level INDIANA TRUSTEES OF The very specific only the majority concludes that UNIVERSITY, Appellee- now re- evolved under the inquiry which Plaintiff. satisfy will pealed portion of statute wholly majority opinion fails to The burden. No. 53A01-9703-CV-88. any change repeal of the recognize after Appeals of Indiana. Court of adoption the rules of evi- provision and dence. Oct. 1997. rule, anal- statutory provision The old Dec. Rehearing Denied The new rule ex- ysis have been abolished. new presumes competency. Once the
plicitly super- adopted, unquestionably
rule was inquiry rule
seded old majority’s steadfast spawned. rule The
old change results recognize the rule
refusal competency issue faulty analysis
in a present
in the case. problem. result underscores end must be determining that a foundation
After here, precisely met
laid and was
majority further concludes that the witness’s she, fact, under- revealed telling the truth
stood the difference between lie, in allow- telling so the initial error
ing Adherence is harmless.