State v. Parker

• Decision Date: 08 June 1970
• Docket Number: No. 2070,2070
• Citation: 106 Ariz. 54,470 P.2d 461
• Parties: STATE of Arizona, Appellee, v. Michael PARKER, Appellant.
• Court: Arizona Supreme Court

Page 461

470 P.2d 461

106 Ariz. 54

STATE of Arizona, Appellee, v. Michael PARKER, Appellant.

No. 2070.

Supreme Court of Arizona, In Division.

June 8, 1970.

Rehearing Denied June 30, 1970.

Gary K. Nelson, Atty. Gen., by Carl Waag, Asst. Atty. Gen., for appellee.

James T. Bialac, Phoenix, for appellant.

McFARLAND, Justice.

Michael Parker--hereinafter referred to as defendant--was tried and convicted on two counts of child molesting of two sisters--the first count was molesting a girl twelve years of age--hereinafter designated as girl one; the second count on a girl nine years of age--hereinafter designated as girl two; and was sentenced to serve a term of three and a half to ten years in the Arizona State Penitentiary on each count, to run concurrently. From his conviction and sentence he appeals.

The defendant was originally charged with committing rape on the person of another sister, a 16-year-old mentally retarded girl--hereinafter designated as girl three, together with child molesting on girl one and girl two. Before the commencement of the trial the court dismissed the charge of rape on a motion of the county attorney, and defendant was tried on the amended complaint charging two counts of child molesting. The stepfather, Del-Mar Anderson, testified that he had been married to the mother of the children since 1965; that on the 16th day of July 1968 he was working at the Malco Service Station at 16th Street and Roma, Phoenix; that he was called on a service call to start a car outside the 'Branding Iron' on Indian School Road, where he met defendant, Michael Parker, at approximately 2:15 p.m.; that they had been fairly good friends; and defendant asked

'* * * if he could pick up the kids and take them over to his swimming pool again. He said he was going to pick up his wife and I said it was okay if he wanted to pick them up.'

He testified that defendant left shortly thereafter. He also testified that the children had previously gone swimming at defendant's home, which was located on Oregon Avenue. The girls, one and two, both testified that while they were in the swimming pool the defendant molested them. Girl one, who was thirteen years of age at the time of the trial, was examined on voir dire by the court and counsel. She explained the difference between the truth and a lie, and said that she knew she would be punished for telling a lie. She testified that while they were swimming the defendant put his

'* * * hand on my breasts with his right hand--left hand, and his right hand up the leg of my pants, my bathing suit.'

Girl two, when she was questioned on voir dire by the court and counsel, stated that one would be punished and confined for telling a lie, and that she could remember back and would tell the truth. She testified as to similar actions while defendant was teaching her to float, at which time he touched her 'sex' area.

The victims' brother, hereinafter designated as the brother, who was eleven years old at the time of the trial, was questioned on voir dire by the court and by counsel. He said he understood what it is to tell the truth and to tell a lie, and that the oath means that one telling a lie would be punished. He testified that he had seen defendant with his sister, girl three (the mentally retarded girl who was sixteen years of age), in the swimming pool; that defendant had his shorts down to his knees; that she had her legs around him; and that his other two sisters were in the pool at the time. His testimony was not clear as to the exact time this occurred--as to whether it was on the same day or on a prior day.

The first question presented pertains to the competency of the three children to testify.

This Court has held that it is within the discretion of a trial judge to determine the competency of a child testifying, and that the exercise of that discretion will not be reversed unless there is a clear abuse of this discretion. State v. Gold-smith, 104 Ariz. 226, 450 P.2d 684; State v. Phillips, 102 Ariz. 377, 430 P.2d 139; State v. Berry, 101 Ariz. 310, 419 P.2d 337; Davis v. Weber, 93 Ariz. 312, 380 P.2d 608; State v. Dominguez, 87 Ariz. 149, 348 P.2d 919; State v. Haston, 64 Ariz. 72, 166 P.2d 141; Keefe v. State, 50 Ariz. 293, 72 P.2d 425; Sheek v. State, 19 Ariz. 509, 172 P. 662.

The defendant, in his brief, contends that there were contradictions in testimony of the witnesses, and that the brother's testimony was hazy. This would go to the weight to be given the testimony, and not to the competency. All three of the children, on voir dire examination, stated they understood the difference between the truth and a lie and that they would be punished if they told a lie. We find no abuse of the court's discretion in admitting their testimony.

The next contention of defendant is that the court erred in permitting the testimony of the brother concerning the alleged prior incident with his retarded sister, girl three. Defendant contends that the admission of the testimony was not proper, stating that it had no connection with the crime for which the defendant was being tried; that it pertained to the crime of rape which had been dismissed.

We have held, in Taylor v. State, 55 Ariz. 13, 97 P.2d 543, that:

'* * * There is no question but that the general rule is 'that, in the prosecution of one accused of a particular offense, evidence showing or tending to show the commission by accused of another crime entirely distinct and independent of...