Walls v. State

• Decision Date: 02 May 1983
• Docket Number: No. 65745,65745
• Citation: 304 S.E.2d 547,166 Ga.App. 503
• Parties: WALLS v. The STATE.
• Court: Georgia Court of Appeals

Page 547

304 S.E.2d 547

166 Ga.App. 503

WALLS v. The STATE.

No. 65745.

Court of Appeals of Georgia.

May 2, 1983.

Steven L. Beard, Atlanta, for appellant.

Thomas J. Charron, Dist. Atty., Debra Halpern Bernes, Asst. Dist. Atty., for appellee.

BIRDSONG, Judge.

Charles Howard Walls was convicted of child molestation and sentenced to eight years, three to serve followed by five years probation. He brings this appeal enumerating four asserted errors. Held:

1. The testimony of the principal witness, a child aged six (five at the time of the offense) involved a sodomitical touching of the infant's penis. If the child's testimony is believed, it was more than sufficient to support the jury's verdict of guilty. In addition to the testimony of the male victim, two other minor children, one aged eleven and the other aged six, testified as to the other acts of sexual aberration which were admitted by the trial court for the limited purpose of showing motive or disposition. The principal objection to the testimony of these children was that they were not competent to testify because none of the three knew the meaning or definition of an oath nor appreciated its sanctity. On the other hand, each child testified that he or she knew the difference between the truth and a lie, that it was wrong to tell a lie and punishment would follow if a falsehood were told, that it was necessary to tell the truth in the proceedings; and each child promised to tell the truth. The trial court overruled the objection to competency and allowed each child to testify.

"... [T]he standard of intelligence required to qualify a child as a witness is not that he be able to define the meaning of an oath, nor that he understand the process under which the oath is administered, but rather that he know and appreciate the fact that as a witness he [is required] ... to tell the truth relative to the case and concerning such matters as he may be interrogated on, and that if he violates the obligation he is subject to be punished...." Smith v. State, 247 Ga. 511-512, 277 S.E.2d 53. See also Sullivan v. State, 162 Ga.App. 297, 298, 291 S.E.2d 127; Allen v. State, 150 Ga.App. 605, 606(2), 607, 258 S.E.2d 285; Lashley v. State, 132 Ga.App. 427, 429(5), 208 S.E.2d 200; Turpin v. State, 121 Ga.App. 294(1), 173 S.E.2d 455.

It is within the sound discretion of the trial court to determine the competency of a child of tender years. In this case the trial court satisfied itself that the children understood they were required to tell the truth, and understood the importance of telling only the truth; and the infants promised to tell the truth. We find no abuse of discretion and therefore will not interfere with that exercised discretion which we find not to have been manifestly abused. See Sullivan v. State, supra, 162 Ga.App. at p. 299, 291 S.E.2d 127. The first enumeration is without merit.

2. In his second enumeration, Walls complains the trial court erred in allowing testimony of one of the infant witnesses and her mother that Walls had solicited the mother to favor him with sexual favors for $50, as placing his character into evidence and as being irrelevant and prejudicial in a child molestation case. However, the evidence also reflects that Walls while in the presence of the mother and other children of tender years, fondled his private parts and exposed himself to the adult and children. In another related situation, another mother and child were allowed to testify that Walls paraded about his trailer wholly nude and the child added that Walls sought to have her (then a five-year-old girl) touch his penis.

Such evidence, while perhaps incidentally putting Walls' character into issue, was highly relevant and competent in this child molestation case. " 'In child molestation cases evidence of similar or connected sexual offenses against children is admissible to corroborate the testimony of the victim as well as to show the lustful disposition of the defendant. Felts v. State, 154 Ga.App. 571(2), 269 S.E.2d 73; Phelps v. State, 158 Ga.App. 219(2), 279 S.E.2d 513.' Ballweg v. State, 158 Ga.App. 576(2), 577, 281 S.E.2d 319." Sullivan v. State, supra, 162 Ga.App. at p. 299, 291 S.E.2d 127. This evidence properly was admitted for the limited purpose relegated to it by the trial court.

3. In his third enumeration Walls urges that the outcry of the victim was uttered at a time too far removed from the occurrence to qualify as a part of the res gestae. Walls thus objected to the testimony of the mother in repeating her son's complaint to her. The facts show, however, that the six-year-old victim had eaten his supper and gone back out to play in the area around Walls' trailer. Shortly thereafter he was called in by his mother, fed a snack and before being put to bed, was bathed. Thus for all the record...