State v. Emery
| Decision Date | 24 August 1981 |
| Citation | 434 A.2d 51 |
| Parties | STATE of Maine v. Gerald EMERY. |
| Court | Maine Supreme Court |
G. Arthur Brennan, Dist. Atty., Anita St. Onge (orally), Asst. Dist. Atty., Alfred, for plaintiff.
James H. Dineen (orally), Kittery, for defendant.
Before McKUSICK, C. J., and WERNICK, NICHOLS, ROBERTS and CARTER, JJ.
Following a jury trial in Superior Court, York County, Gerald Emery was convicted on two counts of gross sexual misconduct, 17-A M.R.S.A. § 253. On appeal, Emery raises questions relating to the competency of the two minor witnesses and the sufficiency of the evidence. We affirm the convictions.
Emery lived with for a time and later married a woman with two children from a previous marriage: Michelle, age nine at the time of trial, and Michael age five. During the week, their mother usually took the children to a babysitter on her way to work and picked them up on the way home. Sometimes, though, the children would stay home or arrive home early, before their mother. It was on those days when Emery, who was unemployed and usually at home during the day, committed the acts with the children for which he was convicted.
The State's evidence against Emery rested primarily on the testimony of the two children whose competency as witnesses Emery challenges. He contends that Michelle was an incompetent because on cross-examination she supposedly changed her testimony on whether she arrived home before her mother on the days in question. Even if true, Michelle's change of testimony on cross-examination would relate to credibility rather than to competency. The transcript, however, shows that her testimony on cross-examination did not significantly vary from her direct testimony. We find no error in the admission of Michelle's testimony.
Emery similarly misrepresents Michael's testimony in arguing that he too was incompetent. During voir dire, the defense asked Michael to explain the meaning of the word "truth." According to the defense version, Michael answered: "It is what I am supposed to tell here." Emery argues that this answer showed that the child had been instructed what to say and had no separate understanding of his obligation to tell the truth. In fact, as the transcript plainly shows and as the trial court pointed out, Michael responded: "By telling what people did to you." The court accepted this answer as showing, in this context, a concept of truth. Upon further questioning, the court was satisfied that Michael...
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State v. Woodburn
...the standard for appellate review as being the determination of whether the trial court had abused its discretion. See State v. Emery, 434 A.2d 51, 52 (Me.1981); State v. Vigue, 420 A.2d 242, 246 (Me.1980), State v. Pinkham, 411 A.2d 1021, 1024 (Me.1980).1 The trial court reasoned that Dr. ......
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...not disturb a trial court's determination on the issue of competency unless an abuse of discretion appears on the record. State v. Emery, Me., 434 A.2d 51, 52 (1981); State v. Vigue, Me., 420 A.2d 242, 246 (1980). In the instant case, Leianna responded intelligently to questions posed by th......
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