Davis v. State, F-80-582
| Decision Date | 18 June 1982 |
| Docket Number | No. F-80-582,F-80-582 |
| Citation | 647 P.2d 450 |
| Parties | John Leon DAVIS, Appellant, v. The STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
John Leon Davis, was convicted in the District Court of Tillman County and sentenced to twenty (20) years' imprisonment for the offense of Making Lewd and Indecent Proposals to a Child Under the Age of Fourteen, After Former Conviction of a Felony.
The victim of this offense was six years-old at the time of the incident and seven years-old at the time of trial. Testimony showed that when she knocked at Davis' door, he answered the door nude and told her to enter. After she replied no, he pulled her into his house and told her to "grab this." The victim immediately ran out of the house and across the street to an older girl in the neighborhood and related what had just happened.
The appellant contends the State failed to properly qualify the young victim as a witness to testify at trial. The evidence code, Laws 1978, c. 285, § 601, now 12 O.S.1981, § 2601, provides that "(e)very person is competent to be a witness except as otherwise provided in this Code."
We hold that the victim was properly allowed to testify under § 2601, having demonstrated to the trial court that she knew what it means to tell the truth and the consequences of telling a lie, and having taken an oath and being in possession of personal knowledge about the offense. See Laws 1978, c. 285, §§ 603, 602, now 12 O.S.1981, §§ 2603, 2602. The "incapable of just impressions" test relied on by the appellant for determination of testimonial capacity of children has been abandoned by the code, with this issue being more appropriately dealt with by the jury in attaching weight and credibility to a child's testimony.
Next the appellant complains of the admission of hearsay testimony given by the neighborhood girl in her recital of what the victim had told her immediately after the incident. Within the statements attributed to the victim was a statement that the appellant had said to her, "grab this." The appellant asserts that these statements do not come within any exceptions to the hearsay rule.
The evidence code excepts to the hearsay rule "a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." Laws 1978, c. 283, § 803(2), now 12 O.S.1981, § 2803(2). For this exception to apply, the statement must have been made by the declarant while under the stress of excitement caused by the startling event or condition within such time that reaction was spontaneous and not the result of reflective thought or fabrication. In this case the victim testified that from the appellant's house she went directly to her older friend who was standing at the end of the street, and told her "right then what had happened." On cross-examination the defense counsel asked, "What you're telling us then, (victim's name omitted), is that after this happened you walked back across the street, is that right?", to which the victim responded by nodding. However, the older girl testified that the victim had come running out of the appellant's house. We find that the declarations made by the victim were sufficiently spontaneous to the startling event to be admitted under the excited utterance exception. Further, the statement attributed to the appellant does not constitute hearsay under Laws 1978, c. 285, § 801(4)(b)(1), now 12...
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