CB, In Interest of, C-87-2
| Decision Date | 26 January 1988 |
| Docket Number | No. C-87-2,C-87-2 |
| Citation | 749 P.2d 267 |
| Parties | In the Interest of CB, a Minor. CB, a minor, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Roger Cowan of Harris and Morton, Evanston, for appellant.
Joseph B. Meyer, Atty. Gen., Peter J. Mulvaney, Deputy Atty. Gen. Richard E. Dixon, Asst. Atty. Gen., Cheyenne, for appellee.
Before BROWN, C.J., and THOMAS, CARDINE, URBIGKIT and MACY, JJ.
On March 6, 1987, after a bench trial, appellant was found to have committed a delinquent act as defined in § 14-6-201(a)(ix), W.S.1977 (July 1986 Replacement). 1 The act he committed was a violation of § 6-4-403(b)(iii) and (c), W.S.1977 (Cum.Supp.1986), 2 performing an indecent or obscene act in the presence of a child. After a dispositional hearing, appellant was placed in the custody of the Wyoming Board of Charities and Reform to be placed in the Wyoming Boys School in Worland for an indefinite term. Appellant was subsequently released to the custody of his mother, under terms and conditions, pending the outcome of this appeal.
Appellant raises three issues:
Our determination on issue I precludes analysis of issue III. We address issues I and II and affirm.
Apellant was found to have committed the offense alleged based on allegations that he exposed his penis to an infant female child. The victim was almost three years old when the incident occurred and just over three years old when the trial took place.
At trial the victim was called as a witness, and the court held a competency hearing in the jury room. Defense counsel never moved to exclude the victim's testimony. Further, defense counsel did not make any formal objection on the competency issue during questioning by the attorneys and the court. The only action by defense counsel suggesting a question regarding the victim's competency as a witness was a remark made during the competency testimony.
"MR. COWAN: Your Honor, this is certainly an endearing little girl but I think the Court can see that she really doesn't understand the difference between what is a fable and what is truth."
The trial court responded by explaining, on the record, its impressions of the victim's competency to testify, concluding that to that point it had not heard enough testimony to rule on the competency issue. The victim then continued to answer questions testifying about the allegations against appellant. Defense counsel never uttered another word in opposition to the victim's competency to testify and did not address the issue in closing argument.
We begin by holding that appellant did not make a proper objection to the competence of the victim to testify at any point during the trial. The sole remark of defense counsel quoted above was amphibological at best. Consequently, we analyze this issue under the three-part test arising out of the plain-error doctrine. First, the record must clearly present the incident alleged to be error. Second, appellant must demonstrate that a clear and unequivocal rule of law was violated in a clear and obvious, not merely arguable, way. Last, appellant must prove that he was denied a substantial right resulting in material prejudice against him. Brown v. State, Wyo., 736 P.2d 1110, 1115 (1987); and Larsen v. State, Wyo., 686 P.2d 583, 584 (1984). The alleged error in this case is that the victim was not competent to testify and that the trial court abused its discretion in allowing her to do so. The trial transcript of this case does not demonstrate that a clear and unequivocal rule of law was violated.
Rule 601, Wyoming Rules of Evidence states:
"Every person is competent to be a witness except as otherwise provided in these rules."
In Baum v. State, Wyo., 745 P.2d 877, 879 (1987), we said:
Larsen v. State, supra, at 585.
See also Baum v. State, supra, at 879.
The trial court has a duty to determine the child's abilities under each factor of this test. The trial court's determination is within its sound discretion, and will not be disturbed unless shown to be clearly erroneous. Baum v. State, supra.
During the competency hearing in the jury room, the following exchanges between counsel and the victim occurred:
After defense counsel's remark, the victim testified to the night of the incident by referring to anatomically correct dolls as follows:
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