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Click here for the full text of this decision FACTS:While pushing his customized wheelbarrow around a Cooper park one day, a 24-year-old mentally retarded man was attacked by three people who also damaged the wheelbarrow. The victim recognized Kevin Lewis as one of the attackers, and gave a description of Lewis to the police. He also testified in court that Lewis was one of the ones who attacked him. Lewis was convicted of intentionally and knowingly causing bodily injury to a disabled individual and sentenced to 10 years in prison. Lewis contests the sufficiency of the evidence. HOLDING:Affirmed. The court disagrees with Lewis’ contention that because of the victim’s mental disability � he has the mental capacity of a 5- or 6-year-old � his identification testimony was “of such an unreliable nature that it is impossible to even determine without reasonable doubt that there was actually an assault,” much less that Lewis was involved. Lewis contends that no jury could reasonably relied on the victim’s factually inconsistent account of the attack or the identity of his attackers. The court confirms that the trial court had to establish the victim’s qualifications to testify and that this affirmative determination will not be disturbed unless there is an abuse of discretion. The victim satisfied the test for competency: he knew his name, said he knew the difference between right and wrong, answered hypothetical questions and acknowledged that someone could get in trouble for not telling the truth under oath. The inconsistencies in the victim’s testimony � that he thought Lewis had green eyes instead of brown; that Kevin wore dreadlocks, but couldn’t explain what dreadlocks are; and that he hadn’t signed his initials next to Kevin’s picture in a photo lineup, when, in fact, he had � go to credibility, the court rules, and when taken with first-hand observation of his demeanor and abilities, the jurors were free to accept his version of the facts over Lewis’ version. Further, no adverse conditions � like obstructed vision or darkness � existed that would prevent the victim from making a well-informed identification of Lewis. The only adverse condition cited by Lewis was the victim’s mental retardation and his frequent tendency to fantasize and make up stories and even lie. Again, these factors go to credibility, the court rules. The court upholds the trial court’s decision not to allow Lewis to enter evidence of the victim’s character. Lewis attempted to go beyond questioning the general characteristics of mentally retarded people and into the specifics of the victim’s characteristics. Further, the expert report Lewis tried to get into evidence was nine years old, the expert didn’t recall making the report, and the report was a review of other people’s opinions about the victim, not a review of the victim himself. Turning to the “real question here” � whether the trial court committed reversible error when it refused to allow Lewis to question the state’s expert regarding the general ability of mentally retarded persons to distinguish reality from fantasy � the court finds the issue was not properly preserved. Finally, the court considers Lewis’ argument that the trial court erred in denying his motion for new trial based on newly discovered evidence. The evidence is two affidavits given by two people the victim allegedly approached after the attack but before going to police; both affidavits state that the victim described the attack, but identified the attackers as possibly being from another town. The court concludes that the affidavits do not constitute new evidence, but merely cumulative evidence. OPINION:Morriss, C.J.; Morriss, C.J., Ross and Carter, JJ.

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