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               MEMORANDUM DECISION - NOT FOR PUBLICATION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.



                                             4
        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

                                             5
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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