State v. Sanders, 36192

• Decision Date: 06 January 1976
• Docket Number: No. 36192,36192
• Citation: 533 S.W.2d 632
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Walter Lee SANDERS, Defendant-Appellant. . Louis District, Division Three
• Court: Missouri Court of Appeals

Page 632

533 S.W.2d 632

STATE of Missouri, Plaintiff-Respondent, v. Walter Lee SANDERS, Defendant-Appellant.

No. 36192.

Missouri Court of Appeals, St. Louis District, Division Three.

Jan. 6, 1976.

Motion for Rehearing or Transfer Denied Feb. 26, 1976.

Hayes & Heisler, Robert E. Heisler, Clayton, for defendant-appellant.

John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Julian D. Cosentino, Asst. Circuit Atty., Charles B. Blackmar, Special Asst. Atty. Gen., St. Louis, for plaintiff-respondent.

GUNN, Judge.

Defendant appeals his jury conviction of statutory rape and sentence under the Second Offender Act to 25 years imprisonment. The appeal centers on the issue of whether the trial court erroneously permitted the victim's seven year old sister to testify. We affirm the judgment.

The sufficiency of the evidence is not challenged. The 15 year old victim and her seven year old sister identified defendant as the one-armed man, known to the victim as 'candyman,' who forced his way into the victim's home, placed a knife to the victim's neck and after ordering the seven year old sister from the room, compelled the victim to have sexual intercourse with him.

The seven year old sister was preliminarily examined by the trial judge, the prosecutor and defense counsel as to her competency to testify, and after examination she was permitted to testify that she had seen the defendant force his way into the home and place the knife to her sister's throat. She acknowledged that she did not see the sex act court but did see her sister naked and the defendant putting on his clothes.

Defendant challenges the seven year old sister's competency to testify. At one point in her examination the seven year old indicated that she did not 'know what it means to lie or what would happen to her if she lied.' There was also indication that she did not fully comprehend the meaning of the oath administered to her. Defendant relies on § 491.060(2), RSMo.1969, and argues that under the provisions of that statute, the seven year old was incompetent to testify.

The test of competency for a child under ten, as outlined in State v. Young, 477 S.W.2d 114, 116 (Mo.1972), is:

'(1) present understanding of or intelligence to understand, on instruction, an obligation to speak the truth; (2) mental capacity at the time of the occurrence in question truly to observe and to register such occurrence; (3) memory sufficient to retain an independent recollection of the observations made; and (4) capacity truly to translate into words the memory of such observation.'

The ultimate responsibility for determining the competency of a child to testify rests with the trial court who occupies the best position to judge the qualification of the witnesses. And the trial court's determination regarding the child's fitness will be reversed only for a clear abuse of discretion. State v. Starks, 472 S.W.2d 407 (Mo.1971); State v. Ball, 529 S.W.2d 901 (Mo.App.1975). State v. Ball, 529 S.W.id 901 (Mo.App1975)....