State v. Johnson, WD
| Decision Date | 09 February 1993 |
| Docket Number | No. WD,WD |
| Citation | 851 S.W.2d 547 |
| Parties | STATE of Missouri, Respondent, v. Michael JOHNSON, Appellant. Michael Leroy JOHNSON, Appellant, v. STATE of Missouri, Respondent. 43759. |
| Court | Missouri Court of Appeals |
Susan L. Hogan, Appellate Defender, Kansas City, for appellant.
William L. Webster, Atty. Gen., Joan F. Gummels, Asst. Atty. Gen., Jefferson City, for respondent.
Before ULRICH, P.J., and SHANGLER and FENNER, JJ.
The defendant Michael L. Johnson appeals from convictions on two counts of rape [§ 566.030, RSMo 1986] and two counts of sodomy [§ 566.060, RSMo 1986] for which Johnson was sentenced to four consecutive terms of fifteen years imprisonment. The defendant also appeals from the denial of his motion to vacate judgment and sentence under Rule 29.15. The appeals were consolidated for review.
The complaining witness as to Counts I and III was J.G., then age 7, and the complaining witness as to Counts II and IV was C.R., then age 7.
During the summer of 1988, J.G. and sisters M. and N. and a brother lived with their mother in Pleasant Hill, Missouri. C.R. often visited J.G. and M. at their house when in Pleasant Hill to see her grandmother. The defendant Johnson and his wife were uncle and aunt to the victim J.G. and her sisters and brother. They lived in the same house in Pleasant Hill.
Throughout the summer, Johnson remained at home alone with the children while his wife worked. According to J.G and C.R., Johnson often took J.G., her sister M., and C.R. to his bedroom and sexually assaulted them, including inserting his penis into their vaginas and anuses, and placing his mouth and hands on their vaginas. The sister, M., testified without objection that Johnson engaged in such activity with her and with another girl, K.B. M. testified that she witnessed some of the activity through the bedroom window. J.G. testified, also without objection, that she saw Johnson commit sexual acts with her sister, M.
There was testimony of specific instances of sexual assaults by Johnson on the girls. One instance was after J.G. left the bathtub wrapped in a towel, when Johnson took her into the living room and placed his mouth on her vagina. J.G. also witnessed Johnson touch C.R.'s vagina with his penis and have intercourse with her sister, M. C.R. testified that Johnson instructed her to lie on the bed and remove her clothes. He then touched her vagina with his hand and mouth and raped her and then penetrated her anus with his penis. Johnson told her they were playing games. C.R. also observed Johnson in the bedroom insert his penis into J.G.'s vagina. M. was also sodomized by Johnson in his bedroom. She witnessed Johnson have anal intercourse with her sister, J.G., and touch C.R.'s vagina with his penis.
C.R. was examined by Dr. Barbara Alphin for signs of sexual abuse. The examination indicated trauma to the genital area consistent with attempted penile penetration. There was an unusually large opening and whitish scar in the anus, injuries consistent with sodomy. Dr. Raymond Newman examined the genital area of J.C. and found vaginal irregularities consistent with sexual abuse.
Johnson testified in his defense. He denied that he engaged in sexual activity with any of the children. K.B. was called as a witness. She was the child that M., the victim J.G.'s sister, testified that Johnson engaged in sexual activity at the same time he did so with her. K.B. testified that Johnson never touched her vagina or anus, or "do anything bad" to her. She described that Johnson took her into the bedroom once, shut the door, and picked her up. She then kicked him between the legs because she thought Johnson was going to "[p]ut his penis in me," as she had seen him do to M., in her "behind." Johnson presented evidence through his wife. She testified that a headboard obscured the lower half of one of the windows in the bedroom, that the other window was too far from the ground for a child to be able to look through. She testified also that it was impossible to see through the keyhole on the bedroom door.
The first point on appeal, incorporated by reference from an earlier brief, argues that the trial court erred in permitting seven-year-old M., sister of the victim J.G., to testify. M. was not a victim of one of the charged crimes. Johnson acknowledges that "[t]he overwhelming body of case law in this state respecting this issue provides almost blanket deference to the trial judge's perception of the minor's competence to testify." See, e.g., State v. Johnson, 694 S.W.2d 490, 491[1, 2] (Mo.App.1985). The argument reminds us, nevertheless, that on appeal the court of review will examine both the voir dire of the witness as well as her actual testimony to assess whether the ruling by the trial court to allow the witness to testify was an abuse of discretion. See K.S. v. M.N.W., 713 S.W.2d 858, 864 (Mo.App.1986).
Section 491.060, RSMo 1986, creates a rebuttable presumption that a child under ten years of age is incompetent to testify except as a victim of certain offenses. State v. Feltrop, 803 S.W.2d 1, 9[15, 16] (Mo. banc 1991). In order for a child under ten years of age to be determined competent to testify, the child must have (1) a present understanding of, or ability to understand upon instruction, the obligation to speak the truth; (2) the capacity to observe the occurrence about which testimony is being sought; (3) the capacity to remember that occurrence; and (4) the capacity to translate the occurrence into words. Id. at 10.
It is the argument that witness M. was "incapable of having just impressions or otherwise distinguishing fact from fantasy." For that reason, M. was not a competent witness under the statute and the trial court abused its discretion in allowing her testimony. A new trial should have been ordered to correct the prejudice from that error. The defendant bases that conclusion on chosen testimony excerpts: "Would you get in trouble if you told a lie?" To which, after some halting, M. replied, "I don't know." Then, to the question: "Do you think you might get in trouble if you told a lie," M. answered, "I don't know," and that she did not understand that she could be punished for telling a lie.
These answers to the inquiry chosen by the prosecution to qualify the witness, the argument goes, bespeak a present understanding of the obligation to speak the truth, and so render her incompetent under the scheme of § 491.060, RSMo.
The determination of whether or not a child witness exhibits the four qualifying factors for competency under Feltrop may rest on the examination by the trial court or on questions of the prosecutor and trial counsel. State v. O'Neal, 651 S.W.2d 634, 636 (Mo.App.1983). The inquiry by the prosecutor and the responses by the witness make it evident that M. had the ability to understand the obligation to tell the truth:
MR. WHITE [Defense Counsel]: Your Honor, I'll respectfully object to that hypothetical. It's simply not analogous to the case at hand.
This full context tends to explain and complete her prior answers, those the defendant's argument cites, to mean that she did not know what the consequences of lying are because she had not lied. The defendant continues to argue nevertheless that the inability of the witness, M., to understand the obligation to tell the truth, and to tell "fact from fiction" is confirmed by the testimony of K.B. M. testified that she witnessed the defendant Johnson do the "same thing" to K.B. as he had to her, to her sister, J.G. and to the other victim, C.R. It was K.B.'s testimony, however, that Johnson never touched her vagina or anus with his penis or hand. Johnson did take her into the bedroom once and shut the door, and then picked her up. K.B. then kicked him "between the legs," because she thought he was going "to put his penis in me." K.B. then said that she had seen Johnson on the bed, through the keyhole to his bedroom, put his penis in M.'s "behind."
This episode notwithstanding, the entire range of her testimony demonstrated an ability to recall and tell of the events that she experienced or observed during the summer of 1988 while she lived in the same household with Johnson. These observations and narrations were consistent with the testimony of the other witnesses as to the same events, and so attest to their truthfulness. State v. Dunn, 731 S.W.2d 297, 301 (Mo.App.1987). In every other respect, the testimony of witness M. corroborated that of the victims, J.G. and C.R. concerning the rapes and sodomies inflicted by Johnson. They all agree that the sexual assaults...
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