Webb v. State

• Decision Date: 12 July 1984
• Docket Number: No. F-83-222,F-83-222
• Citation: 684 P.2d 1208
• Parties: Robert Lindsey WEBB, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1208

684 P.2d 1208

Robert Lindsey WEBB, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-83-222.

Court of Criminal Appeals of Oklahoma.

July 12, 1984.

An Appeal from the District Court of Woodward County; Joe Young, District Judge.

Robert Lindsey Webb, appellant, was convicted of three (3) counts of Lewd Molestation, in Woodward County District Court, Case No. CRF-82-39, was sentenced to five (5) years' imprisonment on each count with five (5) years' to run concurrently with the second five, and he appeals. AFFIRMED.

E. Alvin Schay, Appellate Public Defender, Robert M. Beck, Sp. Counsel, Norman, for appellant.

Michael C. Turpen, Atty. Gen., Susan Brimer Agosta, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

BRETT, Judge:

Robert Lindsey Webb and wife, Patricia Ann, were jointly charged in the District Court of Woodward County, Case No. CRF-82-39, with five counts of Lewd Molestation pursuant to 21 O.S.1981, § 1123. The jury found them guilty of three counts and was unable to reach a verdict on two counts of the crime charged. Appellant herein, Robert Webb, was sentenced to five (5) years' imprisonment on each of the three counts with the third term to run concurrently with the second term. From this conviction he has perfected this appeal.

At trial the appellant's oldest child, an eleven year old daughter, testified that her father had sexual contact with her and with her two sisters and two brothers on October 4, 1981, shortly before Mrs. Edna Brown arrived to take temporary charge of the children. Mrs. Brown, the children's foster mother, testified that she noticed the poor health and hygiene of each child when she bathed them upon arrival at her home. She observed scar tissue on the rectum of the two year old baby boy and vaginal irritation on the oldest girl. Mrs. Brown took the children to a hospital on December 1, 1981, for medical examination. The doctor who examined the girls was present at trial and testified that neither of the two older girls had an intact hymen, but she was unable to examine the youngest girl who was very fearful and agitated at the time. Mr. Sturdy, a social worker who was present during the examination of the two boys, testified that he observed an enlarged rectum and scar tissue thereon on the two year old boy but saw nothing unusual about the older boy's condition. Mrs. Brown further testified that several times during the six months she cared for the children she discovered them engaged in various acts of oral and anal sodomy and incest among themselves.

The first assignment of error is that the trial court improperly permitted an incompetent witness to testify. During examination outside the jury's presence, the eleven year old witness appeared unsure of how many brothers and sisters she had, did not know what school grade she was in, and, though eleven years old, could barely read. Nevertheless, as the witness indicated that she knew the difference between right and wrong, that she knew what she was saying, and that she knew she could be punished if she lied, we find that she was properly allowed to testify. See Davis v. State, 647 P.2d 450 (Okl.Cr.1982), interpreting 12 O.S.1981, § 2601. The contradictory statements by the witness and her inability to read were properly considered by the trial judge to bear upon her credibility rather than her competence to testify. See Gray v. State, 650 P.2d 880 (Okl.Cr.1982).

In his second assignment of error the appellant contends that the trial court should have sustained his demurrer to the evidence since the lewd molestation statute requires that the defendant be eighteen years of age or older and at least five years older than the victim; the appellant's age was never shown at trial. The appellant was in full view of...