Larsen v. State

• Citation: 686 P.2d 583
• Decision Date: 16 August 1984
• Docket Number: No. 84-40,84-40
• Parties: Leslie Phil LARSEN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: United States State Supreme Court of Wyoming

Page 583

686 P.2d 583

Leslie Phil LARSEN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 84-40.

Supreme Court of Wyoming.

Aug. 16, 1984.

Leonard D. Munker, State Public Defender, and Sylvia Lee Hackl, Appellate Counsel, Wyo. Public Defender Program, Cheyenne, for appellant.

A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., John W. Renneisen, Sr. Asst. Atty. Gen., and Michael A. Blonigen, Asst. Atty. Gen., for appellee.

Before ROONEY, C.J., and THOMAS, ROSE, BROWN and CARDINE, JJ.

CARDINE, Justice.

Appellant was convicted of taking indecent liberties with a minor in violation of § 14-3-105, W.S.1977. ¹ He was sentenced to a term of not less than three nor more than ten years in the Wyoming State Penitentiary and appeals from that conviction. We will affirm.

Appellant states the issue as:

"Whether the trial court erred in deeming Appellant's five-year-old son to be a competent witness and in permitting him to testify without taking the necessary oath or affirmation."

Appellant was charged with sexually abusing his minor son during March of 1982 while the family was living in Mountain View, Wyoming. Appellant's son was three and a half years old at the time of the incident and five at the time of the trial. The judge and attorneys for both the State and the defense questioned the victim before the court declared him to be a competent witness. He was then permitted to testify without taking an oath or affirmation.

Appellant did not object at the time to either the ruling on competency or the failure to administer an oath. Therefore, we must look at this issue from the standpoint of "plain error." The plain-error doctrine contains a three-part test:

" ' * * * First, the record must be clear as to the incident which is alleged as error. Second, the party claiming that the error amounted to plain error must demonstrate that a clear and unequivocal rule of law was violated. Finally, that party must prove that a substantial right has been denied him and as a result he has been materially prejudiced. * * * ' " Auclair v. State, Wyo., 660 P.2d 1156, 1159 (1983), cert. denied 464 U.S. 909, 104 S.Ct. 265, 78 L.Ed.2d 249 (quoting Bradley v. State, Wyo., 635 P.2d 1161, 1164 (1981)). See Browder v. State, Wyo., 639 P.2d 889 (1982).

Here the incident alleged as error is the ruling on competency and the failure to administer an oath, and the record as to that incident is clear. The incident, however did not result in a violation of a clear and unequivocal rule of law in an obvious way; and appellant, therefore, cannot succeed under the "plain error" doctrine.

Rule 601, W.R.E., states:

"Every person is competent to be a witness except as otherwise provided in these rules."

Even before the adoption of this rule, we held that it is the duty of the court to examine a child to determine competency and that this question is left almost entirely to the sound discretion of the trial judge. Burt v. Burt, 48 Wyo. 19, 41 P.2d 524 (1935). The United States Supreme Court held in Wheeler v. United States, 159 U.S. 523, 16 S.Ct. 93, 40 L.Ed. 244 (1895):

"That the boy was not by reason of his youth, as a matter law, absolutely disqualified as a witness is clear. While no one would think of calling as a witness an infant only two or three years old, there is no precise age which determines the question of competency. This depends upon the capacity and intelligence of the child, his appreciation of the difference between truth and falsehood, as well as of his duty to tell the former. The decision of this question rests primarily with the trial judge, who sees the proposed witness, notices his manner, his apparent possession or lack of intelligence, and may resort to any examination which will tend to disclose his capacity and intelligence, as well as his understanding of the obligations of an oath. As many of these matters cannot be photographed into the record, the decision of the trial judge will not be disturbed on review, unless from that which is preserved it is clear that it was erroneous." 16 S.Ct. at 93.

Intelligence, not age, is the proper criteria. 81 Am.Jur.2d Witnesses § 88. The general principle is that a person is competent if he has a sufficient understanding to receive, remember, and narrate impressions and is sensible to the obligations of the oath. 81 Am.Jur.2d Witnesses § 69. Rule 601, W.R.E., is consistent with the modern philosophy that few persons are inherently incapable of testifying in some manner which is potentially useful. 3 Louisell and Mueller, Federal Evidence § 250 (1979).

We stated in Burt v. Burt, supra:

" 'In order to be competent as a witness, the child must have sufficient mental capacity to observe the data about which it has testified and record it in mind, and thereafter understand questions put to it and be able to give intelligent answers. There must also be a sense of moral responsibility, at least to the extent of a consciousness of a duty to speak the truth.' " 41 P.2d at 525 (quoting Rogers v. Commonwealth, 132 Va. 771, 111 S.E. 231 (1922)).

In determining the competency of a child witness, other jurisdictions have required a capacity to observe, recollect, communicate and appreciate the moral responsibility to be truthful, Commonwealth v. Mangello, 250 Pa.Super. 202, 378 A.2d 897 (1977), to observe and remember the event by individual recollection and verbally describe it. State v. Kennell, Mo.App., 605 S.W.2d 819 (1980). The test of the competency of a young child as a witness has been held to be:

"(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." State v. Allen, 70 Wash.2d 690, 424 P.2d 1021 (1967), followed by State v. Ross, 92 Idaho 709, 449 P.2d 369 (1968).

We realize that basing a conviction upon the testimony of a young child presents a serious problem.

"Two alternative hazards are confronted. On the one hand, in accepting the testimony of a child there is the danger that she may not be telling the truth, in which event an innocent man may be convicted of crime and suffer the consequences thereof. On the other, if the child's testimony is not accepted, a man guilty of crime, and possibly with the potential for more such, will go free. In this connection, it must be borne in mind that when such an offense [assaulting and taking indecent liberties upon a child] is committed, it is done with the greatest possible stealth and secrecy, so that most often the testimony of the victim, coupled with the type of corroboration we have here, is the only evidence available upon which to determine guilt or innocence. The fact that there are difficulties involved should not prevent the processes of justice from functioning." State v. Smith, 16 Utah 2d 374, 401 P.2d 445, 447 (1965).

The age of the victim witness in this case does not mandate a finding of incompetency. Numerous other jurisdictions have allowed very young children to testify. State v. Tuffree, 35 Wash.App. 243, 666 P.2d 912 (1983) (a four-and-a-half-year-old victim); State v. Thrasher, 233 Kan. 1016, 666 P.2d 722 (1983) (a four-year-old eye witness); State v. Romel, 57 Or.App. 372, 644 P.2d 643 (1982) (five-year-old witness); Sevier v. State, Alaska, 614 P.2d 791 (1980) (the witness was five at the time of the incident and six at trial); Buttram v. State, 269 Ind. 598, 382 N.E.2d 166 (1978) (victim was five); Capps v. Commonwealth, Ky., 560 S.W.2d 559 (1977) (victim was five and a half); State v. Ridley, 61 Wash.2d 457, 378 P.2d 700 (1963) (victim was five years and four months at the time of trial; the incident occurred nine to fifteen months earlier).

Alabama, in Miller v. State, Ala.Crim.App., 391 So.2d 1102 (1980), allowed the four-year-old victim to testify by stating:

" 'The exclusion of a witness having good sense, however tender the age, is disfavored because it would often close the door to prove crimes against children themselves.' " 391 So.2d at 1106 (quoting Jackson v. State, 239 Ala. 38, 193 So. 417 (1940)).

In this case the victim was examined by the trial judge. He was asked questions about his knowledge, his memory, and his awareness of telling the truth. He was also questioned by the attorneys for the defense and the State prior to testifying. The record demonstrates that although the victim was very young, he...