Andrew Whitmer v. State of Indiana

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before Mar 19 2014, 6:52 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the
case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MARIELENA DUERRING GREGORY F. ZOELLER
South Bend, Indiana Attorney General of Indiana
CYNTHIA L. PLOUGHE
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ANDREW WHITMER, )
)
Appellant-Defendant, )
)
vs. ) No. 71A04-1306-CR-318
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
The Honorable Jane Woodward Miller, Judge
Cause No. 71D01-1209-FA-24
March 19, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
SULLIVAN, Senior Judge
Andrew Whitmer appeals his convictions of three counts of child molesting, two
as Class A felonies and one as a Class C felony, and one count of attempted child
molesting, a Class A felony. We affirm.
On the afternoon of September 6, 2012, Officer Brad Rohrscheib of the South
Bend Police Department was on patrol when he was stopped by a woman who was
standing near several children, including seven-year-old Y.A. After talking with the
woman, Rohrscheib called his sergeant and asked that she come to the scene. While he
was waiting, Y.A. approached him. Rohrscheib and Y.A. talked until his sergeant
arrived, and then Rohrscheib asked Y.A. to get in his car. Y.A. directed him to her
house. Upon arrival, Rohrscheib located Whitmer, who is Y.A.’s uncle. Based upon his
conversation with Y.A., Rohrscheib placed Whitmer in custody.
Next, Rohrscheib drove Y.A. and her mother to the Casie Center, which is a child
advocacy center where allegations of abuse are investigated. Detective David Sult was
dispatched to the center. Using a closed-circuit video system, Sult watched Carolyn
Hahn, a child forensic interviewer, question Y.A. Y.A. wrote on pre-printed diagrams
and made drawings during her talk with Hahn. One of the drawings is of a man with an
erect penis holding himself up by his arms on top of a smaller person. Y.A. later testified
the man represented Whitmer, and the smaller person was her.
Meanwhile, another officer brought Whitmer to the Casie Center. After Sult
watched Hahn interview Y.A., he interrogated Whitmer. Whitmer told him Y.A. slept in
the living room on the floor with her brother, and Whitmer’s mother slept in a chair in the
same room. Whitmer initially denied touching Y.A. in a sexual way. He then said that
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one night, while looking for the dogs, he went into the living room and touched Y.A.’s
thigh while her grandmother and brother were sleeping. Upon further questioning,
Whitmer said he touched Y.A.’s vagina over her clothes, and then he changed his story
again to say he touched Y.A.’s vagina under her clothes. Later, Whitmer told Sult that he
also lay on top of Y.A. as she lay on her stomach and put his penis between her legs. He
admitted that he had “sex” with Y.A. “once.” Tr. p. 168.
The State charged Whitmer with three counts of child molesting, two as Class A
felonies and one as a Class C felony. The State later amended the charging information
to add two counts of Class A felony attempted child molesting. At trial, the court
determined that Y.A. was competent to testify. Y.A. testified that Whitmer went into the
living room at night when her grandmother and brother were sleeping. Y.A. further
stated that Whitmer pulled down her pajamas and penetrated her vagina and anus with his
penis on multiple occasions. She also said he rubbed her vagina with his hand on more
than one occasion.
The jury found Whitmer guilty as charged. The trial court entered a judgment of
conviction on all charges except one count of attempted child molesting, citing double
jeopardy concerns, and sentenced him accordingly. This appeal followed.
Whitmer claims the trial court erred in determining that Y.A. was competent to
testify. When a child is called to testify at trial, the court has the discretion to determine
if a child witness is competent. Richard v. State, 820 N.E.2d 749, 754 (Ind. Ct. App.
2005), trans. denied. As a general rule, the trial court’s decision on a child’s competency
to testify is reviewable only for a manifest abuse of that discretion. Aldridge v. State,
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779 N.E.2d 607, 609 (Ind. Ct. App. 2002), trans. denied. However, in this case, Whitmer
concedes that he failed to object to the trial court’s determination that Y.A. was
competent. Failure to object to the admission of evidence at trial normally results in
waiver and precludes appellate review unless its admission is fundamental error. Archer
v. State, 996 N.E.2d 341, 346 (Ind. Ct. App. 2013), trans. denied.
The fundamental error exception is “extremely narrow, and applies only when the
error constitutes a blatant violation of basic principles, the harm or potential for harm is
substantial, and the resulting error denies the defendant fundamental due process.”
Delarosa v. State, 938 N.E.2d 690, 694 (Ind. 2010) (quoting Mathews v. State, 849
N.E.2d 578, 587 (Ind. 2006)). The claimed error must either “make a fair trial
impossible” or constitute “clearly blatant violations of basic and elementary principles of
due process.” Id. (quoting Clark v. State, 915 N.E.2d 126, 131 (Ind. 2009)).
To determine whether a child is competent to testify, the trial court must consider
whether the child: (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. Archer, 996 N.E.2d at 346.
In this case, the trial court inquired into Y.A.’s competency during several
hearings held outside the presence of the jury, a process that the State recognizes
involved “considerable struggle.” Appellee’s Br. p. 6. The court’s first examination
occurred when the State called Y.A. to testify on the morning of the first day of trial. She
refused to answer the prosecutor’s questions or look at her.
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After a lunch break, Y.A. answered the prosecutor’s questions. She said she knew
the difference between the truth and a lie and that she was obligated to tell the truth. Tr.
pp. 62-65. However, when the trial court and Whitmer’s counsel questioned her, Y.A.
said she would not tell the truth. When the prosecutor asked her why she had been
crying, she pointed at Whitmer. Y.A. then further told the prosecutor she would not tell
the truth and did not want to answer. At that point, the trial court allowed Y.A.’s mother
into the courtroom, but Y.A. stopped answering questions. She agreed with the
prosecutor that seeing Whitmer bothered her. The prosecutor then stopped questioning
Y.A. and, with the court’s permission, presented other evidence instead.
On the second day of the trial, the court resumed its competency hearing. Y.A.
agreed that she had to tell the truth and, upon questioning by Whitmer’s counsel,
promised to do so. She further told Whitmer’s counsel that she understood the difference
between telling a truth and a lie. At that point, the court found that Y.A. was competent
to testify.
We cannot conclude that the court’s determination that Y.A. was competent to
testify amounted to a clearly blatant violation of principles of due process or rendered a
fair trial impossible. The court referred to the three elements set forth in Archer,
demonstrating that it was aware of the applicable legal standard. The parties and the
court’s questioning established the three elements of competency. Furthermore, it
appears from our review of the record that Y.A.’s prior refusals to answer questions and
her refusals to promise to tell the truth were caused by her understandable fear of
confronting the adult she was accusing. We do not discern from the record that Y.A. was
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unable to understand the difference between a truth and a lie, was unable to understand
that she was required to tell the truth, or intended to deceive the jury. Furthermore, we
note that there was other evidence against Whitmer, including his own incriminating
statements to Sult. Whitmer has thus failed to establish fundamental error.
Whitmer notes that the State used leading questions during Y.A.’s testimony. He
further notes that Y.A.’s testimony was for the most part nonverbal, consisting of her
pointing to the words “Yes” or “No” written on an easel in response to questions. These
circumstances go to Y.A.’s credibility rather than her competency. It was for the jury to
decide what weight to give the manner in which she responded to questions. See Kien v.
State, 866 N.E.2d 377, 385 (Ind. Ct. App. 2007) (any inconsistencies in child witness’s
testimony went to her credibility, not her competency, and court did not err by permitting
such testimony), trans. denied.
For the reasons stated above, we affirm the judgment of the trial court.
Affirmed.
BAKER, J., and CRONE, J., concur.
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