State v. Ross, 10121

• Court: United States State Supreme Court of Idaho
• Citation: 449 P.2d 369,92 Idaho 709
• Docket Number: No. 10121,10121
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Arthur ROSS, Defendant-Appellant.
• Decision Date: 31 December 1968

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449 P.2d 369 92 Idaho 709 STATE of Idaho, Plaintiff-Respondent,
v.
Arthur ROSS, Defendant-Appellant. No. 10121. Supreme Court of Idaho. Dec. 31, 1968.

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Gigray, Boyd & Downen, Caldwell, for defendant-appellant.

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Allan G. Shepard, Atty. Gen., and Roger B. Wright, Deputy Atty. Gen., Boise, C. Robert Yost, Pros. Atty., Caldwell, for plaintiff-respondent.

SMITH, Chief Justice.

Appellant has appealed from a judgment of conviction on three counts each charging the commission of 'a lewd act upon and with a part of the body of a minor child * * * under the age of 16 years.' I.C. § 18-6607. ¹

The circumstances of the charged offenses were the same or similar on all three occasions. The record indicates that on July 26, 1966, appellant either enticed or coerced into his garage five year old Tammy my --- (count 1), and on that date and on August 8, 1966, six year old Tracy --- (counts 2 and 3) and then placed his hand inside the panties of each child and fondled her 'private parts.' Each incident supposedly occurred about the noon hour. The children suffered no physical harm.

Appellant was arrested and charged with the offenses. He was interrogated by the sheriff and prosecuting attorney of Canyon County. The details and procedure of this interrogation are later discussed.

After the jury found appellant guilty on all three counts, and after a pre-sentence investigation, the court entered its judgment of conviction. The court then meted out concurrent sentences of penal servitude of ten years on each of the three counts. ²

Appellant assigns error committed by the trial court:

1. In denying appellant's motion for a new trial because of insufficiency of the evidence to show that appellant had committed a criminal act because of,-

Incompetency, inconsistency and insufficient corroboration of the testimony of the prosecution's witnesses;

Appellant's defense or an alibi was not rebutted by the state;

Appellant established a possible ulterior motive for the prosecution.

2. In denying a motion for a new trial because the state's evidence failed to establish the necessary element of 'intent' required by I.C. § 18-6607.

3. In refusing to exclude statements which appellant made to the sheriff on the ground that appellant's guaranteed constitutional rights had been violated.

4. In giving jury instruction No. 6.

5. In denying appellant's request for probation.

6. In sentencing appellant to 30 years servitude in the penitentiary.

Appellant contends that the two girls-prosecution's witnesses-were not competent to testify in that they were under 10 years of age and appeared 'incapable of receiving just impressions of the facts [92 Idaho 712]

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respecting which they are examined, or of relating them truly,' citing I.C. § 9-202. ³ Appellant argues that if that testimony is stricken, or is given the merited minimal weight, then the state has not met its burden of proof of the charged offenses.

Estate v. Allen, 70 Wash.2d 690, 424 P.2d 1021 (1967), dealt with RCW 5.60.50, which in pertinent part is the same as I.C. § 9-202. In that case the supreme court of Washington established the following test for competency in deciding that a six year old girl could testify as prosecuting witness regarding the defendant having taken indecent liberties with her person:

'The true test of the competency of a young child as a witness consists of the following: (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.'

'The determination of the witness's (sic) ability to meet the requirements of this test and the allowance or disallowance of leading questions (citation) rest primarily with the trial judge who sees the witness, notices his manner, and considers his capacity and intelligence. These are matters that are not reflected in the written record for appellate review. Their determination lies within the sound discretion of the trial judge and will not be disturbed on appeal in the absence of proof of a manifest abuse of discretion. * * *.'

See also State v. Smith, 16 Utah 2d 374, 401 P.2d 445 (1965); see State v. Harp, 31 Idaho 597, 173 P. 1148 (1918).

Turning first to Tammy's testimony, we find no error in allowing its admission. Her testimony was halting and sometimes contradictory, and in instances the record indicates 'no response,' but nevertheless, it was consistent as regards the offense in question. Appellant asserts that the child did not know the difference between telling the truth and not telling the truth or between right and wrong. But when questioned as to what she spoke, when she related something which actually happened, she replied, 'The truth.' And she responded that it was 'a lie' if she told 'something that just didn't happen.' She stated that she knew what had happened and was telling the truth, and the fact that she may not have understood the nature and obligation of an oath would not render her incapable of testifying. State v. Harp, supra.

Most of the inconsistencies in the testimony of both children involved quantitative analyses. How many times had you been present on appellant's property? How long did appellant hold his hands on you? How many times did your family go on picnics? What time of the day did the events take place-morning or noon? These classify into the categories of numbers and relative time. It is not surprising that the testimony of the children was somewhat confused and inconsistent as to those matters.

However, as to the events constituting the statutory offense in question, the testimony of Tammy was quite consistent. Her crucial testimony was as follows:

'Q. What did he do?

'A. Put his hands down my pants.

'q. And then what did he do?

'A. On my crotch.

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'Q. Where is your crotch?

'A. Between my legs.

'Q. (W)as the hand inside or outside of the underpanties?

'A. Inside.

'Q. And what did he do with his hand while his hand was between your legs?

'A. He rubbed my crotch.'

Regarding the testimony of Tracy, appellant raises the same basic objections. Here again, the inconsistencies concern the time of day at which the events occurred, but not the facts essential to the crimes. In the preliminary hearing, Tracy testified that she yelled, that appellant held his hand over her mouth, and that he cautioned her to tell no one about the incident. At the trial she repeated that testimony, but omitted mention of any outcry. These inconsistencies did not make her incapable of testifying, within the meaning of I.C. § 9-202. If anything, although the younger of the two children, her testimony was the more concise of the two. It would serve no purpose to produce extracts of that testimony here. We hold that she, too, was competent to testify.

Given the admitted inconsistencies in the testimony of the minor children-the prosecution's witnesses-appellant contends that the evidence is insufficient to show that a crime was committed or that it was committed on these witnesses. This court, however, has repeatedly held that the credibility of witnesses and the weight to be accorded their testimony is exclusively for the jury, and where there is competent, though conflicting, evidence to sustain a verdict, the court cannot reweigh the evidence or disturb the verdict. State v. Pruett, 91 Idaho 537, 428 P.2d 43 (1967); State v. Booton, 85 Idaho 51, 375 P.2d 536 (1962); State v. Harp, supra; State v. Berry, 101 Ariz. 310, 419 P.2d 337 (1966). It is not for this court to review the minor inconsistencies in the testimony of children, provided the inconsistencies could have been considered by the jury and there was no abuse of discretion by the trial judge in admitting the testimony. People v. Cook, 136 Cal.App.2d 442, 288 P.2d 602 (1955); People v. Cox, 104 Cal.App.2d 218, 231 P.2d 91 (1951); Cf. State v. Harp, supra.

Appellant then asserts that even if the testimony of the girls is admissible, there could be no conviction based on it since the corroboration thereof was insufficient. Cases decided by this court establish the proposition that corroboration of the prosecutrix' testimony is necessary to sustain a conviction under I.C. § 18-6607. State v. Tope, 86 Idaho 462, 387 P.2d 888 (1963); State v. Madrid, 74 Idaho 200, 259 P.2d 1044 (1953); State v. Elsen, 68 Idaho 50, 187 P.2d 976 (1947); State v. Short, 39 Idaho 446, 228 P. 274 (1924). State v. Elsen, supra, announces the rule:

'If the character or reputation of the prosecutrix for truth and chastity is unimpeached, and her testimony is not contradictory nor (sic) inconsistent with the admitted facts of the case, and is not inherently improbable nor (sic) incredible, there can be either direct evidence corroborating her testimony, or evidence of surrounding circumstances clearly corroborating her statements. Either will suffice. If, however, her character or reputation for truth and chastity, or either, is impeached, or her testimony is contradictory or is inconsistent with the admitted facts of the case, or is inherently improbable or incredible, then there must be direct evidence corroborating her testimony.' ⁴

The sheriff testified as to certain admissions which appellant made during an August 15, 1966, interrogation before the [92 Idaho 714]

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prosecuting attorney and the sheriff. As set out below, they furnish sufficient corroboration of the testimony of the girls. See 1 Wigmore on Evidence, § 25 (3d ed., 1940):

'Q. Will you state what that conversation was?

'A. There was conversation as to where it occurred. He (appellant) said it was at his garage when he was living out on South Tenth...