                                                                             Sep 24 2013, 5:34 am

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.

ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

JOEL M. SCHUMM                                     GREGORY F. ZOELLER
Indianapolis, Indiana                              Attorney General of Indiana

                                                   J.T. WHITEHEAD
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

A.T.,                                              )
                                                   )
        Appellant-Defendant,                       )
                                                   )
               vs.                                 )        No. 49A02-1212-JV-980
                                                   )
STATE OF INDIANA,                                  )
                                                   )
        Appellee-Plaintiff.                        )


                     APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Marilyn A. Moores, Judge
                       The Honorable Geoffrey A. Gaither, Magistrate
                             Cause No. 49D09-1206-JD-1776



                                       September 24, 2013

                MEMORANDUM DECISION - NOT FOR PUBLICATION

KIRSCH, Judge
       A.T. appeals an adjudication finding him to be a delinquent child for committing

child molesting,1 an act that would be a Class C felony if committed by an adult. A.T.

raises two issues for our review, which we restate as follows:

     I.          Whether the juvenile court erred in overruling A.T.’s objection to a
                 nine-year-old victim’s testimony; and

    II.          Whether the juvenile court erred in excluding the testimony of two
                 late-disclosed witnesses.

       We affirm.

                           FACTS AND PROCEDURAL HISTORY

       The facts most favorable to the juvenile court’s delinquency determination are that

in 2011, A.T., a juvenile, lived with his mother, her boyfriend, and her boyfriend’s two

daughters, K.T. and E.T. When E.T. was in the second grade, she learned about good

touches and bad touches through an elementary school program. At the conclusion of the

program, E.T. signed a card indicating that she had received a bad touch. It happened

when she entered A.T.’s bedroom, where he was playing a game. A.T. was sitting up in

front of the television on his bed and he touched her “butt” with his “private.” E.T.

testified that she was wearing clothes at the time. Tr. at 38-49.

       On July 2, 2012, the State charged A.T. with child molesting, an act that would be

a Class C felony if committed by an adult. A.T. was also charged with three other

offenses, which were eventually dismissed.

       The juvenile court held a denial hearing on October 23, 2012. At the outset of the

hearing, A.T. moved to add two new witnesses. Defense counsel, Harold Thurston

       1
           See Ind. Code § 35-42-4-3.

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(“Thurston”), had learned about the new witnesses two days before the hearing, on a

Sunday, and had notified the State the next day. However, the State’s prosecutor, who

had been in court all day, did not receive Thurston’s message until Monday afternoon.

During the denial hearing, Thurston stated that the witnesses purportedly had lived with

A.T. and E.T. at the time of the allegations. Additionally, Thurston offered that, although

he had not yet interviewed the new witnesses, they would testify about the veracity of

E.T. and about A.T.’s relationship with her. Thurston moved to add the witnesses, the

State moved to exclude them, and the trial court granted the State’s motion.

       During A.T.’s hearing, the State presented its evidence, including testimony from

E.T. After the State had rested, Thurston argued that E.T.’s testimony was inadmissible

because her competency had not been established. At the time of the hearing, E.T. was

nine years old. The court overruled the objection, finding it untimely.

       At the conclusion of the denial hearing, the juvenile court entered a true finding.

A.T. now appeals.

                            DISCUSSION AND DECISION

       A.T. raises two arguments.     First, he contends that his true finding of child

molesting should be reversed because, as a foundational matter, neither the State nor the

juvenile court asked any questions to establish the competence of the nine-year-old

victim, E.T.   Next, A.T. contends that the trial court abused its discretion when it

excluded his two late-disclosed witnesses.

                                 I.   Competence of E.T.

       Indiana Evidence Rule 601 provides, “Every person is competent to be a witness

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except as otherwise provided by these rules or by act of the Indiana General Assembly.”

In interpreting and applying Evidence Rule 601, we have observed that the rule’s failure

to presumptively exclude children does not prohibit special inquiry into their competency

prior to testifying when the issue is raised by the defendant. Burrell v. State, 701 N.E.2d

582, 584 (Ind. Ct. App. 1998); see also Aldridge v. State, 779 N.E.2d 607, 609 (Ind. Ct.

App. 2002) (noting that the current witness-competency statute “assumes competency

until otherwise demonstrated by the opponent of the testimony.”); Harrington v. State,

755 N.E.2d 1176, 1180-81 (Ind. Ct. App. 2001).

      A determination of a witness’s competency lies within the sound discretion of the

trial court, and we review only for a manifest abuse of that discretion. Aldridge, 779

N.E.2d at 609.      When the presumption of competence is rebutted, “[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.”

D.G. v. State, 947 N.E.2d 445, 448 (Ind. Ct. App. 2011) (citing Kien v. State, 866 N.E.2d

377, 385 (Ind. Ct. App. 2007), trans. denied).

      In support of his argument opposing E.T.’s competency, A.T. points to D.G.,

where we reversed a true finding for child molesting because “neither the trial court nor

counsel conducted any inquiry” into the elements of competency listed above. 947

N.E.2d at 449.     The present matter is distinguishable.      In D.G., defense counsel

contended he had objected to the competency of the youth witness during a sidebar and

that he later learned the sidebar was inaudible and could not be transcribed. Id. at 448.

                                            4
Upon so learning, defense counsel made a motion, with a sworn statement as to the

contents of that sidebar, which was part of the juvenile court’s record. Id. In deciding

D.G., we took a liberal approach, citing precedent for giving the benefit of the doubt in

speculative matters involving unrecorded sidebars. Id. at 449.

       Here, however, there was no such unrecorded sidebar. Rather, A.T.’s counsel

made no objection to E.T.’s competency before or during E.T.’s testimony. It was not

until after E.T. had testified that A.T.’s counsel objected. As we have previously held, a

witness, including a child witness, is presumed to be competent to testify, unless the

opponent of the testimony properly raises the issue. Aldridge, 779 N.E.2d at 609. By not

timely objecting to E.T.’s testimony, A.T. has waived his witness-competency argument.

                      II.    Exclusion of Late-Disclosed Witnesses

       A.T. next contends that the juvenile court erred when it excluded testimony from

two potential witnesses.     The trial court has inherent discretionary power on the

admission of evidence, and its decisions are reviewed only for an abuse of that discretion.

Vasquez v. State, 868 N.E.2d 473, 476 (Ind. 2007) (citing Jones v. State, 780 N.E.2d 373,

376 (Ind. 2002)). Although wide discretion is given to the trial court, the trial court must,

in making its decisions, “give substantial weight to a defendant’s constitutional rights,

here the right to compulsory process under the Sixth Amendment to the U.S. Constitution

and Art. 1, § 13 of the Indiana Constitution.”        Id.   Indeed, “Indiana jurisprudence

recognizes a strong presumption to allow defense testimony, even of late-disclosed

witnesses: ‘The most extreme sanction of witness exclusion should not be employed

unless the defendant’s breach has been purposeful or intentional or unless substantial and

                                             5
irreparable prejudice would result to the State.’” Id. (quoting Wiseheart v. State, 491

N.E.2d 985, 991 (Ind. 1986)).

       An erroneous exclusion of evidence does not require reversal, however, if the

probable impact on the jury, in light of all of the evidence in the case, is sufficiently

minor so as not to affect the defendant’s substantial rights. Id. at 477; see, e.g., Williams

v. State, 714 N.E.2d 644, 652 (Ind. 1999) (finding that exclusion of witness’s testimony

was harmless error where DNA and other evidence connected defendant to crime); Farris

v. State, 818 N.E.2d 63, 70 (Ind. Ct. App. 2004) (finding exclusion of potential witness

harmless where there was uncertainty about what witness would testify about and where

evidence against defendant was otherwise strong).

       As both parties have identified, our Supreme Court has provided factors that are

helpful in determining whether to exclude a witness:

       (i) when the parties first knew of the witness; (ii) the importance of the witness’s
       testimony; (iii) the prejudice resulting to the opposing party; (iv) the
       appropriateness of lesser remedies such as continuances; and (v) whether the
       opposing party would be unduly surprised and prejudiced by the inclusion of the
       witness’s testimony.

Vasquez, 868 N.E.2d at 477 (quoting Williams, 714 N.E.2d at 651 n.5).

       The trial court did not err in excluding the two late-disclosed witnesses. The

witnesses were known to A.T. and his family throughout the pendency of this case and

indeed had lived in A.T.’s home when the events giving rise to this action occurred, but

the witnesses were not disclosed to State until the day before the Denial Hearing and well

after discovery had been completed.       The complaining witness, her sister and their

mother had travelled to Indianapolis from Detroit, Michigan for the Denial Hearing, and

                                             6
a continuance or a bifurcation of the hearing would have been burdensome to them. The

State had no opportunity to depose or take statements from the witnesses prior to the

hearing.     Although A.T.’s counsel indicated that the witnesses would testify as to the

veracity of the victim, counsel had not yet interviewed the witnesses and referenced no

specific incidents or circumstances about which the witnesses would testify.          In

reviewing the record, we cannot say whether the witnesses would have supported A.T.’s

defense. The trial court did not abuse its discretion in excluding A.T.’s two proffered

witnesses.

      Affirmed.

VAIDIK, J., and PYLE, J., concur.




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