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09/30/87 JOHN N. MAYNARD v. STATE INDIANA

Filed: September 30, 1987.

JOHN N. MAYNARD, APPELLANT (DEFENDANT BELOW)
v.
STATE OF INDIANA, APPELLEE (PLAINTIFF BELOW)



APPEAL FROM THE JOHNSON COUNTY CIRCUIT COURT, The Honroable Larry J. McKinney, Judge, No. 9018 and 9019.

Pivarnik, J., Dickson, J., Concurring in result.

Author: Pivarnik

PIVARNIK, J.

Defendant-Appellant, John N. Maynard, was convicted by a Johnson County jury of two counts of child molesting, class B felonies. The trial court ordered him to serve consecutive sentences of eighteen (18) years and twelve (12) years. In this direct appeal, Appellant raises the following issues for our review:

1. sufficiency of the evidence supporting each conviction;

2. error in finding the child witnesses competent to testify;

3. error in excluding testimony concerning a prior incident of molestation;

4. prosecutorial misconduct;

5. error in sustaining the State's objection to certain impeachment testimony;

6. error in admitting evidence of other uncharged acts of molestation committed by Appellant;

7. whether the alleged errors taken together amount to reversible error, and;

8. error in sentencing.

Appellant was charged with two counts of performing or submitting to deviate sexual conduct with a child under the age of twelve (12) years. At the time these crimes were committed, Appellant lived with his wife, Jan Maynard, her two sons, D. V., and G. V., and the couple's one year old son, John, Jr. D. V. was nine (9) years old and G. V. was eight (8) years old. The evidence at trial indicated Appellant forced both D. V. and G. V. to perform oral sex on him and he also performed oral sex on D. V.

I

Appellant challenges the sufficiency of the evidence supporting both convictions. When sufficiency of the evidence supporting a criminal conviction is challenged on appeal, we apply a narrow standard of review. We neither reweigh the evidence nor Judge the credibility of the witnesses. Rather, we look at the evidence most favorable to the State together with all reasonable inferences to be drawn therefrom. If there is substantial evidence of probative value from which the jury could have reasonably inferred guilt beyond a reasonable doubt, the conviction will be affirmed. Arthur v. State (1986), Ind., 499 N.E.2d 746, 747; McMurry v. State (1984), Ind., 467 N.E.2d 1202, 1204.

The testimony presented at trial is summarized as follows. Appellant and Jan were married in August 1983. The couple had some difficulties but these seemed to subside upon the birth of the couple's first child. Appellant would care for the newborn baby during the day, and work during the afternoon and evening hours.

During the fall of 1984, D. V. and G. V. were in school and rode the bus home each night. Appellant was the only adult at home when the boys returned from school. In October, 1984, D. V.'s grades began to slip and he failed to turn in a science project on time. Jan learned that Appellant frequently kept one or both of the boys home on school days to take care of the baby while Appellant slept. In December, 1984, Jan took the children and moved out of the home. She stated Appellant was becoming increasingly more violent and was smoking marijuana in the presence of the children. The boys stayed with either their grandparents or their Aunt Catherine.

On January 5, 1985, G. V.'s Aunt Catherine scolded him for misbehaving. G. V. then told his grandmother, Thayis Vest, that he felt like everyone, including Appellant, liked his brother, D. V., more than they liked him. Thayis asked G. V. why he felt that way. G. V. responded that every night after school, ...


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