CB, In Interest of, No. C-87-2
| Court | United States State Supreme Court of Wyoming |
| Writing for the Court | Before BROWN; BROWN |
| Citation | 749 P.2d 267 |
| Decision Date | 26 January 1988 |
| Docket Number | No. C-87-2 |
| Parties | In the Interest of CB, a Minor. CB, a minor, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
Page 267
CB, a minor, Appellant (Defendant),
v.
The STATE of Wyoming, Appellee (Plaintiff).
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.
Page 268
BROWN, Chief Justice.
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:
"I. Whether the trial court abused its discretion by allowing a three (3) year old child to testify over objection that the witness was not competent.
"II. Whether allowing testimony of a three (3) year old child denied accused the right of confrontation under the Sixth Amendment of the Constitution of the U.S. and § 10 Article I of the Constitution of the State of Wyoming.
"III. Whether the testimony of [the] three (3) year old child was prejudicial error."
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
Page 269
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:
"Intelligence, not age, is the guiding criteria in determining the competency of a witness. [Citation.] Generally, ' * * * [A] person is competent if he has sufficient understanding to receive, remember and narrate impressions and is sensitive to the obligations of the oath.' * * *"
We follow a five-part test to determine the competency of a young child as a witness. To be competent, the child witness must demonstrate
" '(1) an understanding of the obligation to speak the truth on the witness stand;
" '(2) the mental capacity at the time of the occurrence concerning which he is to testify, to receive an accurate impression of it;
" '(3) a memory sufficient to retain an independent recollection of the occurrence;
" '(4) the capacity to express in words his memory of the occurrence; and
" '(5) the capacity to understand simple questions about it.' [Citations.]" 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:
"DIRECT EXAMINATION
"BY MR. DONOVAN:
"Q. Can you tell everybody who [mother's first name] is? You said [mother's first name] gave you your necklace. Who's [mother's first name]?
"A. [Mother's full name].
* * *
* * *
"Q. Is that--What is your mom's name?
"A. [Mother's first name].
"Q. So [mother's full name] is your mom?
"A. (The [victim] nodded.)
"Q. Is that right?
"A. (The [victim] nodded.)
"Q. Do you have a dad?
"A. (The [victim] nodded.)
"Q. What is your dad's name?
"A. [Father's first name].
"Q. What is your name?
"A. [Victim's first name].
"Q. Do you have a middle name or is it just [Victim's first name]?
"A. I'm this old. (Indicating)
"Q. You're three years old?
"A. (The [victim] nodded.)
* * *
* * *
"Q. Okay. [Victim's first name], you said you were three years old, is that right?
"A. (The [victim] nodded.)
"Q. Is that the truth or a lie?
"A. The truth.
"Q. The truth. What if I say [Victim's first name] is five years old. Is that a truth or a lie?
"A. A lie.
"Q. Is that good or bad if I lie?
"A. Bad.
"Q. What happens to me if I lie, hum?
"A. I get spanked.
"Q. What happens to [Victim's first name] if she lies?
"A. Spanks.
"Q. You get a spanking?
Page 270
"A. (The [victim] nodded.)
"Q. Yeah. If we asked you questions, will you tell the truth?
"A. (The [victim] nodded.)
"Q. Will you tell the Judge what you know?
"A. Yes."
After defense counsel's remark, the victim testified to the night of the incident by referring to anatomically correct dolls as follows:
"Q. Okay. What do you want to name this doll?
"A. [Defendant's first name].
"Q. [Defendant's first name]. Okay. Do you know--you said you know that [Defendant's first name] over there? (Indicating)
"A. (The [victim] nodded.)
"Q. Did that [Defendant't first name] ever hurt [Victim's first name]?
"A. (The [victim] nodded.)
"Carl's friend.
"Q. Carl's friend, [Defendant's first name].
"And where's Carl's friend, [Defendant's first name]?
"A. At court.
"Q. At court. Is that Carl's friend [Defendant's first name] right there? (Indicating)
"A. (The [victim] nodded.)
"Q. How did--how did Carl's friend [Defendant's first name] hurt [Victim's first...
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...right resulting in material prejudice to him." Ogden v. State, 2001 WY 109, ¶ 9, 34 P.3d 271, 274 (Wyo.2001) (quoting In Interest of CB, 749 P.2d 267, 268-69 Discussion [¶ 46] The district court instructed the jury in the instant case on the elements of first-degree murder, second-degree mu......
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Seymore v. State, No. 05-179.
...in material prejudice against him. 152 P.3d 405 Ogden v. State, 2001 WY 109, ¶ 9, 34 P.3d 271, ¶ 9 (Wyo.2001) (quoting In Interest of CB, 749 P.2d 267, 268-69 (Wyo.1988)); see also Brown, ¶ Leyva v. State, 2005 WY 22, ¶ 8, 106 P.3d 873, 876 (Wyo.2005). [¶ 10] The appellant did not object at......
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Herden v. State ex rel. Dep't of Family Servs. (In re TJH), S-20-0180
...may violate his right of confrontation." Tamblyn v. State, 2020 WY 76, ¶ 50, 465 P.3d 440, 453 (Wyo. 2020) (citing In Interest of CB , 749 P.2d 267, 271 (Wyo. 1988) ). She also quotes the following passage from Bush v. State, 2008 WY 108, ¶ 49, 193 P.3d 203, 214-15 (Wyo. 2008) :The Sixth Am......
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Pierson v. State, No. 96-91
...prejudice against him. Brown v. State, Wyo., 736 P.2d 1110, 1115 (1987).' " Britt, 752 P.2d at 428 (quoting In the Interest of CB, 749 P.2d 267, 268-69 Error claimed with respect to jury instructions must be addressed in both a procedural and substantive context: From the procedural perspec......
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Siler v. State, No. 03-169.
...right resulting in material prejudice to him." Ogden v. State, 2001 WY 109, ¶ 9, 34 P.3d 271, 274 (Wyo.2001) (quoting In Interest of CB, 749 P.2d 267, 268-69 Discussion [¶ 46] The district court instructed the jury in the instant case on the elements of first-degree murder, second-degree mu......
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Seymore v. State, No. 05-179.
...in material prejudice against him. 152 P.3d 405 Ogden v. State, 2001 WY 109, ¶ 9, 34 P.3d 271, ¶ 9 (Wyo.2001) (quoting In Interest of CB, 749 P.2d 267, 268-69 (Wyo.1988)); see also Brown, ¶ Leyva v. State, 2005 WY 22, ¶ 8, 106 P.3d 873, 876 (Wyo.2005). [¶ 10] The appellant did not object at......
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Herden v. State ex rel. Dep't of Family Servs. (In re TJH), S-20-0180
...may violate his right of confrontation." Tamblyn v. State, 2020 WY 76, ¶ 50, 465 P.3d 440, 453 (Wyo. 2020) (citing In Interest of CB , 749 P.2d 267, 271 (Wyo. 1988) ). She also quotes the following passage from Bush v. State, 2008 WY 108, ¶ 49, 193 P.3d 203, 214-15 (Wyo. 2008) :The Sixth Am......
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Pierson v. State, No. 96-91
...prejudice against him. Brown v. State, Wyo., 736 P.2d 1110, 1115 (1987).' " Britt, 752 P.2d at 428 (quoting In the Interest of CB, 749 P.2d 267, 268-69 Error claimed with respect to jury instructions must be addressed in both a procedural and substantive context: From the procedural perspec......