Dumas v. State

• Decision Date: 16 July 1999
• Docket Number: No. A99A0758.,A99A0758.
• Citation: 239 Ga. App. 210,521 S.E.2d 108
• Parties: DUMAS v. The STATE.
• Court: Georgia Court of Appeals

521 S.E.2d 108

239 Ga. App. 210

DUMAS v. The STATE.

No. A99A0758.

Court of Appeals of Georgia.

July 16, 1999.

Cynthia W. Harrison, Stone Mountain, for appellant.

Paul L. Howard, Jr., District Attorney, Elizabeth A. Baker, Nathaniel Dobson, Jr., Assistant District Attorneys, for appellee. POPE, Presiding Judge.

Frederick Dumas was convicted on one count of aggravated sodomy. His motion for new trial, as amended, was denied, and he appeals.

1. Dumas contends the verdict was contrary to the evidence and against the weight of the evidence. In particular, he contends that the State did not show that the victim lacked the ability to consent to a sexual relationship with him or that he used force. We first note that this court views the evidence in the light most favorable to support the verdict, and an appellant "no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. [Cit.]" Johnson v. State, 236 Ga.App. 61, 63(1), 510 S.E.2d 918 (1999). So viewing the evidence, we have examined the record, and we conclude that the evidence was sufficient to enable a rational trier of fact to conclude that Dumas committed aggravated sodomy against the victim, a mentally retarded 22-year-old man.

2. Dumas contends the trial court erroneously permitted the victim to testify after finding that the victim did not understand the oath due to his incapacity.

At trial, relying on OCGA § 24-9-5, Dumas challenged the competency of the victim to testify, arguing that the victim did not have the use of reason and could not understand the oath because of his mental incapacity. OCGA § 24-9-5 provides as follows:

(a) Except as provided in subsection (b) of this Code section, persons who do not have the use of reason, such as idiots, lunatics during lunacy, and children who do not understand the nature of an oath, shall be incompetent witnesses.

(b) Notwithstanding the provisions of subsection (a) of this Code section ... in criminal cases involving child molestation, and in all other criminal cases in which a child was a victim of or a witness to any crime, any such child shall be competent to testify, and his credibility shall be determined as provided in Article 4 of this chapter.

During the competency hearing, the prosecutor analogized the adult victim to a child because he allegedly functioned at the capacity of a seven-year-old, and the trial court apparently agreed with this characterization of the victim's mental abilities. The State argued that under the competency statute the victim was not required to understand the oath, rather he was required only to be able to reason. After hearing further argument, the trial court stated that the threshold issue for determination was whether the statute applied "as if he's a child or whether it applies as if he's an adult." The court then attempted to question the victim using the sister's assistance. After this initial examination, the court made the following ruling:

Based on the court's examination of [the victim] and his sister, it's clear to the court that [the victim] is not functioning as an adult. Clearly he may be an adult in terms of chronological age but he's not an adult. I believe, as I understand it, he functions about like a ... six or seven-year-old. He's fairly non-verbal.... Based on what the court has observed, the court will allow the testimony of [the victim] through his sister or some other assistance through his mother for purposes of this trial.... I do not find that [the victim] has to understand the oath because of his obvious incapacity.

The court also concluded the victim had the ability to reason, because the victim obeyed his instructions to "come in," "sit down," and "get up." The court also noted that the victim followed the instructions of his sister when she said "come on, let's go."

Just prior to the victim's testimony Dumas again objected, contending that the victim was incompetent to testify as an adult. Dumas argued that under OCGA § 24-9-5, the victim was required "to understand the oath, and the difference between truth and falsity," as well as to have the ability to reason. Dumas argued alternatively that if the court believed the victim to be a child, the victim was nevertheless incompetent under OCGA § 24-9-5(b), because he was unable to reason. The court reiterated its earlier ruling, stating that the victim could "testify particularly after the evidence has come in as to whether he has the ability to reason, although be it as a child." The court twice asked the victim, "Do you know how to tell the truth?" and the victim nodded his head. The court responded, "You do? Can you say `yes' for me?" The victim answered, "[Y]es." The victim was then permitted to testify.

First, subsection (a) of OCGA § 24-9-5 says those who cannot reason are incompetent to testify. Here, at the competency hearing the court held that the victim had that ability. Dumas has not challenged that conclusion.

Second, pretermitting whether OCGA § 24-9-5(b) applies to the mentally incompetent, the law has long recognized that mentally incompetent witnesses may testify if they meet the same standard that formerly applied to children, and the victim in this case met that standard. Before subsection (b) was added to OCGA § 24-9-5 in 1989, competency of the mentally impaired as witnesses was assessed by the same test as children, i.e., whether they understand the nature of the oath.

A person who has been adjudged insane is not, in all cases, incompetent as a witness. His testimony is admissible if he has sufficient understanding to apprehend the obligations of an oath and to be capable of giving a correct account of the matters he has seen or heard in reference to the questions at issue.

Cuesta v. Goldsmith, 1 Ga.App. 48, hn. 3, 57 S.E. 983 (1907).¹

The rules governing courts in the admission of evidence of ... one alleged to be... of insufficient mental capacity to understand the nature of an oath and appreciate its sanctity[ ] are analogous to those applicable to a case where testimony of a child is offered and objected to on the ground that the child, because of its tender years and the mental incapacity resulting therefrom, is incapable of understanding the nature of an oath. [Cits.]

Langston v. State, 153 Ga. 127, hn. 2, 111 S.E. 561 (1922).

Understanding the nature of the oath does not require a technical understanding of the oath, but rather a simple understanding of truth and falsehood and the importance of telling the truth. As stated in Smith v. State, 247 Ga. 511-512, 277 S.E.2d 53 (1981), understanding the nature of an oath requires,

not that he be able to define the meaning of an oath, nor that he understand the process under which the oath is administered, but rather that he know and appreciate the fact that as a witness he assumes a solemn and binding obligation to tell the truth relative to the case and concerning such matters as he may be interrogated on, and that if he violates the obligation he is subject to be punished by the court.

See also Vaughn v. State, 226 Ga.App. 318, 319(1), 486 S.E.2d 607 (1997) (witness understood difference between truth and falsehood and the importance of telling the truth); Lamunyon v. State, 218 Ga.App. 782, 783(1), 463 S.E.2d 365 (1995) (witness could appreciate the difference between truth and lie and appreciate obligation to tell the truth); Howard v. State, 212 Ga.App. 298, 301(3), 441 S.E.2d 759 (1994) (witness knew what a promise was and that it was good to keep a promise and bad to break it, and then she promised to tell the truth); Haslem v. State, 160 Ga.App. 251, 252(1), 286 S.E.2d 748 (1981) (victim understood nature of oath and the charges against defendant).

Everyone is presumed competent to testify, even people who have been shown to have mental disabilities. Flynn v. State, 255 Ga. 415, 419(7), 339 S.E.2d 259 (1986). Here, the trial court observed that the victim had the ability to reason. Before he testified, the victim indicated he knew how to tell the truth; his mother testified he knew the difference between right and wrong and he had the ability to reason; and his sister testified he could distinguish between right and wrong and is remorseful when wrong. The mother and sister were authorized to testify regarding the victim's competency. OCGA § 24-9-7(b). This evidence was sufficient to show that the victim had an appreciation for the truth. "A trial court's ruling will be affirmed if it is right for any reason." (Citations and punctuation omitted). Lewis v. State, 233 Ga.App. 560, 562(2), 504 S.E.2d 732 (1998).

3. Dumas contends the trial court erroneously admitted evidence of similar transactions. Following a Uniform Superior Court Rule 31.3 hearing, the trial court permitted the State to introduce evidence of three similar transactions. The first involved the alleged molestation of Dumas's niece. Dumas's sister testified that in 1977, her then seven-year-old daughter told her that Dumas had placed his finger in her bottom. Although Dumas's sister reported this alleged incident to the authorities, she eventually dropped the charges at the request of their mother.

Another of Dumas's sisters testified that she and Dumas were living with their mother in 1978, and she returned home from work to find the house locked. She knocked on the door and asked "Nookie" to let her in. Dumas told her he was coming to the door, but the witness testified she stood at the door for five minutes, and she threatened to "bust the window pane if you don't come to the door." When Dumas finally opened the door, the witness saw "a little child ... coming out the door." The child "acted like she was real scared and ... she was looking real wild. Her little eyes, you know, she had bugged out little eyes." The child was unable to talk, apparently because of her fear, according to...