We note that our supreme court has stated that a Trial Rule 60(B) motion โis a remedy to be used in civil actions ... and that the proper procedure [in a criminal matter] would have been for the appellant to proceed under the post-conviction relief rules.โ Lottie v. State, 273 Ind. 529, 538, 406 N.E.2d 632, 639 (Ind.1980), overruled on other grounds by Ludy v. State, 784 N.E.2d 459 (Ind.2003). Citing to Davis, the Lottie court further stated, โThis Court has provided for procedures such as this under Ind. R. P.C. 1.โ
Tr. at 204. On appeal, the defendant acknowledged that the instruction was upheld in Lottie v. State, 273 Ind. 529, 532-33, 406 N.E.2d 632, 636 (1980), but urged revision in light of the criticism of the instruction presented in Carie v. State, 761 N.E.2d 385 (Ind. 2002) (Dickson, J., dissenting from denial of transfer). On transfer, the defendant invites the Court to reconsider its position.
For the foregoing reasons this instruction should not be given. I acknowledge, however, that this Court has allowed similar instructions to survive appellate review. In Lottie v. State, 273 Ind. 529, 532-33, 406 N.E.2d 632, 636 (Ind. 1980), this Court declined to find error in the giving of a similar instruction. It rejected the claim that the instruction "invited the jury to give undue weight to the testimony of the victim," noting the adequacy of other instructions, the fact that the challenged instruction was not mandatory, and that the instruction was likely helpful to the jury.
The trial court modified the instruction by deleting the second paragraph. Appellant contends the trial court erred in doing so because the second paragraph was a correct statement of the law, there was evidence in the record to support giving the instruction, and the subject matter of the instruction was not adequately covered in other instructions. Appellant cites Lottie v. State, (1980) Ind., 406 N.E.2d 632 in support of his contention the second paragraph of the instruction was a correct statement of the law. The State does not dispute that there was evidence in the record to support giving the instruction.
He asserts that Instruction No. 16 should have stated "* * * if the other elements are proved beyond a reasonable doubt." We found a [5] similar contention without merit in Lottie v. State, (1980) 273 Ind. 529, 406 N.E.2d 632, 636, and note that here, as in Lottie, the jury was fully instructed on the State's burden of proof. Additionally, this Court has repeatedly approved Instruction No. 17.
Substantially the same instruction has withstood challenges on several occasions on appeals from convictions for various sex offenses. See Lottie v. State (1980), 273 Ind. 529, 406 N.E.2d 632, 636 (instruction given in rape conviction upheld); Skaggs v. State (1982), Ind. App., 438 N.E.2d 301, 307-8 (instruction given in child molestation conviction upheld, citing Lottie); Hiner v. State (1984), Ind. App., 470 N.E.2d 363, 370-1 (instruction given in rape conviction upheld since other instructions covered issue of witness credibility even though uncorroborated testimony of victim instruction did not specifically state that to convict the uncorroborated testimony had to be believed by the jury). Our Supreme Court, in Lottie, disposed of a defendant's challenge to an uncorroborated testimony instruction as giving undue weight to the victim's testimony, determining that:
The State filed a Verified Motion to Dismiss the Appeal, arguing that Rule 60(B) was not the proper vehicle to raise such a challenge and noting that, "Our Supreme Court has observed that . . . the proper procedure is for defendants to proceed under post-conviction rules. Lottie v. State, 273 Ind. 529, 538, 406 N.E.2d 632, 639 (1980), overruled on other grounds by Ludy v. State, 784 N.E.2d 459 (Ind. 2003)." The Indiana Court of Appeals agreed and granted the motion to dismiss on October 30, 2017.
In Schumpert, the South Carolina Supreme Court held that the jury instruction, "the testimony of the victim need not be corroborated in prosecutions under ยง 16-3-655, that being the offense of criminal sexual conduct with a minor," was correct as given. 435 S.E.2d at 863. In the case, the court cited Lottie v. State, 406 N.E.2d 632 (1980), an Indiana case, as being in accord with the same proposition. Id. Petitioner argues that because Lottie was overturned prior to Petitioner's trial date, Schumpert was no longer good law, and trial counsel was ineffective for not objecting to the jury instruction drawn from Schumpert.
Id. We cited Lottie v. State, 273 Ind. 529, 406 N.E.2d 632 (1980), to support this holding. Lottie was recently overruled in Ludy v. State, 784 N.E.2d 459, 462 n. 2 (Ind. 2003).
Additionally, we have previously held presumption of truthfulness instructions to be proper. Timberlake v. State, 690 N.E.2d 243, 258-59 (Ind. 1997) (citing Holmes v. State, 671 N.E.2d 841, 858 (Ind. 1996); Lottie v. State, 273 Ind. 529, 535, 406 N.E.2d 632, 637 (1980)), cert. denied, 525 U.S. 1073 (1999); see also Cupp v. Naughten, 414 U.S. 141 (1973) (holding that a similar instruction did not violate the Due Process Clause of the 14th Amendment).