Dunham v. State

• Decision Date: 21 September 1988
• Docket Number: No. F-85-798,F-85-798
• Citation: 762 P.2d 969,1988 OK CR 211
• Parties: James T. DUNHAM, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 969

762 P.2d 969

James T. DUNHAM, Appellant, v. STATE of Oklahoma, Appellee.

No. F-85-798.

Court of Criminal Appeals of Oklahoma.

Sept. 21, 1988.

Rehearing Denied Oct. 19, 1988.

An appeal from the District Court of Pottawatomie County; Glenn Dale Carter, District Judge.

James T. Dunham, appellant, was convicted in the District Court of Pottawatomie County, on three counts of sodomy, crime against nature, and one count of attempted sodomy, crime against nature, all after former conviction of two or more felonies. All counts, having been denominated as crimes "After Former Conviction of Two or More Felonies," will be modified to crimes "After Former Conviction of a Felony." Furthermore, the sentences imposed therefore will be modified as follows: Count I, sodomy, crime against nature, sentence modified from twenty-five (25) years to ten (10) years; Count II, attempted sodomy, crime against nature, from twenty (20) years to ten (10) years; Count III, sodomy, crime against nature, from twenty-five (25) years to ten (10) years; and Count IV, sodomy, crime against nature, from thirty (30) years to ten (10) years. The judgment of the trial court as MODIFIED is AFFIRMED.

Mark Barrett, Sp. Counsel, Appellate Public Defender's Office, Norman, for appellant.

Robert H. Henry, Atty. Gen., M. Caroline Emerson, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

BUSSEY, Judge:

The appellant, James T. Dunham, was convicted in the District Court of Pottawatomie County, Case No. CRF-85-74, on three counts of Sodomy, Crime Against Nature, and one count of Attempted Sodomy, Crime Against Nature, all After Former Conviction of Two or More Felonies. He was sentenced to imprisonment for total consecutive terms of 100 years and brings this appeal.

The facts disclosed by the record reveal that the victim of the charges, a four-year-old boy, was seen sucking another boy's penis by day care workers. When asked how he had learned to act that way, the child responded, "Daddy sucks my pee-pee, Daddy says it's alright and not to tell Mommy."

The child was picked up by a social worker and a Pottawatomie County Juvenile Officer, who discussed the incident with the child and took a video taped statement. The child was then placed in a foster home. Visitation by both parents was on a supervised basis only.

About two months later, the child was allowed to go to his parents' house to celebrate his birthday. After he returned to the foster home, his foster mother noticed that he was experiencing discomfort. When she asked what was wrong, he told her that his daddy had attempted copulation per anus with him. The foster mother contacted the social worker assigned to the case, the police were contacted, a second video taped statement was taken, and approximately one week later an information charging misconduct under 21 O.S.1981, § 886 was filed. After conviction by jury, this appeal was perfected.

As his first assignment of error, appellant seeks reversal with instructions to dismiss on the grounds that the child's testimony was the only incriminating evidence and the testimony was not competent. In support of this assignment, appellant first points out that no oath was administered to the child at the time he took the stand at trial. The State's response is not that an oath was administered. Rather, the State relies on a sequence of questions asked by the trial court after the child had already given his testimony in the State's case in chief.

The law regarding the requirement that a witness testify under oath is generally very clear in this State. The applicable statute is 12 O.S.1981 § 2603, which states, "Every witness shall be required to declare before testifying that he will testify truthfully, ..." (emphasis added). However, it is also well settled that a defendant may waive his right to have the witness sworn where the defendant raised no objection at trial despite knowledge of the irregularity, and where the witness appeared as a defense witness. Keeney v. State, 53 Okl.Cr. 1, 6 P.2d 833 (1932).

Although the child in this case was initially called as a State's witness, appellant recalled the child during his case in chief and raised no objection concerning the failure to administer an oath to the child. From this, we hold that the appellant waived his right and cannot now assert it as grounds for reversal. Furthermore, having found waiver of the oath and finding that appellant did actually confront the witness, appellant's related assignment alleging violation of his Sixth Amendment rights is without basis.

Appellant further objects to the child's testimony on the grounds that the child was incompetent to testify. Under 12 O.S.1981 § 2601, all persons are presumed competent to testify. In Hicks v. State, 713 P.2d 18 (Okl.Cr.1986), this Court held that a child's testimony was competent where it was ascertained that she could distinguish truth from fiction, took an oath, and demonstrated that she had personal knowledge of the crime. There is no question whether the child in this case had personal knowledge. The oath was waived as above discussed. The remaining issue is whether this child could distinguish truth from fiction. Although he showed some confusion during the trial, the child in this case affirmatively recognized that he would be punished for making up stories. The child's responses satisfied the judge that the testimony was reliable. Determination of a witness' competency to testify is a matter of discretion for the trial judge, and that determination will not be disturbed unless the party asserting error shows a clear abuse of discretion. Lancaster v. State, 541 P.2d 1343 (Okl.Cr.1975). Appellant has failed to make such a showing, and we are bound to abide by the trial judge's decision.

Appellant next asserts that reversible error occurred when certain testimony was received in evidence. First, appellant objected to a line of cross-examination by the State concerning allegations of past homosexual conduct by the appellant. The court overruled the objection but did not state any reasons. Appellant argues that the remarks were not admissible under 12 O.S.1981, § 2404. The State asserts that the line of questions were used merely to impeach the credibility of the witness and were therefore admissible under 12 O.S.1981, § 2609. Neither argument is well made.

First, it must be recognized that rulings on admission of evidence are to be resolved in the sound discretion of the trial court. Absent prejudice or breach of defendant's fundamental rights, this Court will not disturb the ruling. Cooper v. State, 671 P.2d 1168 (Okl.Cr.1983). The Evidence Code, Title 12 O.S.1981 § 2104.A.1, states that error may not be predicated on the admission of evidence unless a substantial right of the party asserting error has been affected and a timely objection stating specific grounds appears on the record, but specific grounds need not be stated if they are apparent from the context. Objection was raised in this case, but the grounds were not stated. Unless the grounds are apparent from the context, no error may be predicated on admission of the evidence under § 2104.A.1. The context of the question raises possibilities of other crime evidence, general character evidence, evidence of habit, hearsay evidence, and a host of others. After an off-the-record conference, the objection was generally overruled. No further objections were raised on this line of questions.

Because this Court cannot ascertain the grounds for the objection, it will not be addressed unless fundamental error is shown. Appellant asserts that under Davis v. State, 413 P.2d 920 (Okl.Cr.1966), fundamental error occurred because the State insinuated that it had proof of extraneous illegal activities without showing that there was a sound basis for believing the allegations to be true. In that case, however, error occurred because there was no proof of prosecutor's clear implications of illegal conduct, and the prosecutor refused to accept the defendant's denials of such conduct. In this case, an inference of illegal conduct came from the fact that the questions concerned information in a probation report. Appellant admitted on the stand that the probation officer had interviewed him in jail. When appellant denied making the statements contained in the report, the prosecutor clarified what exactly was being denied and dropped the matter. Thus, there was at least some proof of the conduct and there was no misconduct by the prosecutor. Because of the distinctions between this case and Davis, and because appellant cites no other authority on point to show fundamental error, this Court will not review this assignment on appeal.

Appellant asserts also that use of several witnesses' opinions concerning the child's truthfulness warrants reversal. While it is true that it is improper for a witness to give an opinion on whether a defendant is guilty or innocent, Daniels v. State, 554 P.2d 88 (Okl.Cr.1976), this is not such a case. The witnesses in this case did not give any opinions as to whether they thought appellant was guilty. They merely related their impressions of the child's truthfulness. Other expert testimony was elicited that four-year-olds generally could not tell a lie consistently. This was all to bolster the child's credibility which had been attacked by the defense.

Appellant argues that just as a prosecutor's comments on guilt or innocence is fundamental error, Cobbs v. State, 629 P.2d 368 (Okl.Cr.1981), a State's witness' opinion of the child's truthfulness in this case should be viewed as fundamental error. The argument is without support and without merit. This assignment does not warrant reversal.

Appellant next asserts that testimony was taken concerning his exercise of Fifth Amendment privileges. He correctly states that under Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), post-arrest silence may not be used to impeach...