L.M. v. State of Indiana (NFP)
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FILED Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. Jun 29 2010, 10:50 am CLERK of the supreme court, court of appeals and tax court ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE: KAREN CELESTINO-HORSEMAN Indianapolis, Indiana GREGORY F. ZOELLER Attorney General of Indiana KARL M. SCHARNBERG Deputy Attorney General Indianapolis, Indiana IN THE COURT OF APPEALS OF INDIANA L.M., Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) ) No. 49A02-1001-JV-15 APPEAL FROM THE MARION SUPERIOR COURT The Honorable Marilyn Moores, Judge The Honorable Geoffrey Gaither, Magistrate Cause No. 49D09-0908-JD-2468 June 29, 2010 MEMORANDUM DECISION - NOT FOR PUBLICATION FRIEDLANDER, Judge L.M. was adjudicated a juvenile delinquent for committing an act that would constitute the crime of class B felony child molestation if committed by an adult. L.M. presents the following consolidated and restated issues for review: 1. Did the juvenile court commit fundamental error in determining that three-year-old G.D. was a competent witness? 2. Did the State present sufficient evidence to support the adjudication? We affirm. The facts favorable to the adjudication are that on the evening of August 8, 2009, fourteen-year-old L.M. attended a birthday party for two-year-old J.D. s older brother, A.D. The party was at the children s home, and L.M. stayed the night. L.M. spent a good deal of time playing with J.D during the party. After the party, A.D. and L.M. watched television in A.D. s bedroom, while J.D. and her sister, G.D., were in their own bedroom. At some point, L.M. left A.D. s bedroom for a period of time. While in the girls bedroom, L.M. placed his mouth on J.D. s vagina1 with her pants and panties pulled down. G.D. observed this happen to her younger sister and reported it to their mother the following morning. On August 10, the State filed a petition alleging that L.M. was a delinquent child for having committed an act that would constitute class B felony child molesting if committed by an adult. The denial hearing was held on November 3.2 The State presented the testimony of three-year-old G.D. Prior to her testimony, G.D. s competency to testify was examined. When the State subsequently asked the court to find G.D. competent to testify, defense 1 Specifically, G.D. testified that L.M. put his mouth on J.D. s pooda-pada , which G.D. clearly identified on a diagram as the vaginal area. 2 Immediately prior to said hearing, a child hearsay hearing was conducted, and two-year-old J.D. was declared incompetent to testify. Thus, her prior disclosure to her mother was excluded from evidence at the denial hearing. counsel affirmatively indicated that he had no objection. The defense presented the testimony of A.D. At the conclusion of the hearing, the juvenile court entered a true finding against L.M. as set forth above. L.M. now appeals. 1. L.M. initially contends that G.D., the sole witness against him, should have been found incompetent to testify. Acknowledging that he did not object to the court finding her competent to testify, L.M. asserts fundamental error. He maintains that the State conducted an inadequate examination to determine the child s competency and that her subsequent testimony shows G.D. was not competent to testify. The fundamental-error exception to the waiver rule is narrow. Caron v. State, 824 N.E.2d 745 (Ind. Ct. App. 2005), trans. denied. To rise to the level of fundamental error, the error must be so prejudicial to the rights of the defendant that a fair trial is rendered impossible. Id. We may reverse on this basis only when there has been a blatant violation of basic principles that denies a defendant fundamental due process. Id. To prevail on a claim of fundamental error, the defendant must prove a violation occurred that rendered the trial unfair. Id. In determining whether an alleged error rendered a trial unfair, we must consider whether the resulting harm or potential for harm is substantial. Id. at 751. A child s competency to testify at trial is established by demonstrating that he or she (1) understands the difference between telling a lie and telling the truth, (2) knows he or she is under a compulsion to tell the truth, and (3) knows what a true statement actually is. Kien v. State, 866 N.E.2d 377, 385 (Ind. Ct. App. 2007), trans. denied. To be qualified to testify, a child need not be a model witness, have an infallible memory, or refrain from making inconsistent statements. Id. (quoting Casselman v. State, 582 N.E.2d 432, 435 (Ind. Ct. App. 1991)). In the instant case, G.D. s testimony at the hearing at least marginally indicates that she understood the difference between a truth and a lie, knew that she was under a compulsion to tell the truth, and knew what a true statement was. Further, had L.M. objected to the competency finding, a more thorough examination of her competency would have surely ensued. Based upon our review of the record, we find no reason to doubt the competency of G.D. s testimony. The fact that G.D. s testimony, especially during crossexamination, was at times ambiguous or could be interpreted as inconsistent goes to her credibility, not her competency. See id.; Harrington v. State, 755 N.E.2d 1176 (Ind. Ct. App. 2001). L.M. has not established fundamental error. 2. L.M. challenges the sufficiency of the evidence, asserting that the only evidence presented against him was G.D. s inconsistent and uncorroborated testimony. Appellant s Brief at 4. He notes a conflict between G.D. s and A.D. s testimonies and further claims G.D. s testimony was incredibly dubious. When the State seeks to have a juvenile adjudicated to be delinquent for committing an act that would be a crime if committed by an adult, the State must prove every element of that crime beyond a reasonable doubt. Upon review, we apply the same sufficiency standard used in criminal cases. When reviewing the sufficiency of the evidence, we do not reweigh the evidence or judge the credibility of witnesses. Instead we look only to the evidence of probative value and the reasonable inferences that support the determination. A.E.B. v. State, 756 N.E.2d 536, 540 (Ind. Ct. App. 2001) (citations omitted). Further, the uncorroborated testimony of a single witness can provide sufficient evidence. See McCarthy v. State, 749 N.E.2d 528 (Ind. 2001). The doctrine of incredible dubiosity applies where a sole witness presents inherently contradictory testimony that is equivocal or the result of coercion and there is a complete lack of circumstantial evidence of the defendant s guilt. Thompson v. State, 765 N.E.2d 1273, 1274 (Ind. 2002). Application of this rule is rare and the standard to be applied is whether the testimony is so incredibly dubious or inherently improbable that no reasonable person could believe it. Krumm v. State, 793 N.E.2d 1170, 1177 (Ind. Ct. App. 2003). G.D. s testimony was not incredibly dubious. Rather, the three-year-old unequivocally testified that L.M. put his mouth on J.D. s vagina while in the girls bedroom. We do not find that the child s testimony was inherently contradictory in any significant aspect, nor do we agree with L.M. s suggestion that the evidence demonstrates that G.D. s testimony was coerced by her mother. Further, we observe that inconsistencies between a witness s pretrial statement and trial testimony do not make the testimony inherently contradictory and that the incredible dubiosity rule has not been applied where there are inconsistencies between the testimonies of witnesses. See Corbett v. State, 764 N.E.2d 622 (Ind. 2002); Ferrell v. State, 746 N.E.2d 48 (Ind. 2001). Thus, L.M. s reliance on A.D. s testimony and L.M. s allegation that G.D. s prior statement to the responding police detective was inconsistent with her testimony are not relevant in determining whether G.D. s testimony was incredibly dubious. We decline to characterize G.D. s testimony as so incredibly dubious or inherently improbable that no reasonable person could believe it. It was for the trier of fact to decide how to weigh G.D. s credibility in light of all the circumstances, and in the absence of incredibly dubious testimony, we will not impinge on the fact-finder s responsibility to judge witness credibility. Therefore, we reject L.M. s invitation to reweigh the evidence and judge the credibility of the witnesses. Judgment affirmed. KIRSCH, J., and ROBB, J., concur.
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