J.H. v. State

RUCKER, Judge,

dissenting.

I respectfully dissent. The majority has engaged in an exercise which is prohibited by our standard of review, namely, reweighing evidence and judging witness credibility. In so doing it has invaded the province of the factfinder. Although the victims in this case were only four and five years of age at the time of trial, their competency as witnesses was established by the trial judge. See Ind. Code § 34-1-14-5 (amending provisions of previous statute which had created a presumption of incompetency for children under age ten). In this case, the majority does not discuss the children's competency as witnesses. However, the detailed recitation of the victims' conflicting testimony strongly suggests that the majority questions whether either child was competent as a witness. It is within the discretion of the trial court to determine competency of a witness and we will reverse only upon a showing of abuse. Hoover v. State (1991), Ind.App., 582 N.E.2d 403, adopted, Ind., 589 N.E.2d 243 (1992). In any event, the law is well settled that in order to be qualified to testify, a child need not be a model witness, have infallible memory, or refrain from making inconsistent statements. Casselman v. State (1991), Ind.App., 582 N.E.2d 432, 435 citing Curry v. State *627(1969), 252 Ind. 347, 248 N.E.2d 30, 31. Ferreting through inconsistent statements and weighing their probative value is the duty of the factfinder, here the trial judge, and not this court. Tague v. State (1989), Ind., 539 N.E.2d 480, 482.

Even after improperly weighing evidence and judging witness credibility, the majority still concedes "[the only consistent testimony by the boys was that J.H. flicked them with her finger on their penises and that they were clothed when this occurred." 655 N.E.2d at 625. The majority then concludes this evidence is not sufficient to show J.H. possessed the requisite intent to arouse or satisfy her sexual desires. This conclusion ignores settled law. Evidence of the intentional touching of a victim's genital area justifies an inference that the defendant acted with the intent to arouse or gratify sexual desires. Hammond v. State (1985), Ind.App., 479 N.E.2d 629, 632 citing Tapp v. State (1971), 256 Ind. 422, 269 N.E.2d 367; McEachern v. State (1985), Ind.App., 474 N.E.2d 1034; Best v. State (1981), Ind.App., 418 N.E.2d 316. The evidence in this case was sufficient to sustain the conviction and the judgment of the trial court should be affirmed.