Westbrook v. State

• Decision Date: 11 March 1988
• Docket Number: No. 75099,75099
• Parties: WESTBROOK v. The STATE.
• Court: Georgia Court of Appeals

Page 131

368 S.E.2d 131

186 Ga.App. 493

WESTBROOK v. The STATE.

No. 75099.

Court of Appeals of Georgia.

March 11, 1988.

Rehearing Denied March 22, 1988.

Certiorari Denied April 20, 1988.

Jane Kent-Plaginos, Cumming, for appellant.

Rafe Banks III, Dist. Atty., T. Russell McClelland III, Asst. Dist. Atty., for appellee.

McMURRAY, Presiding Judge.

Defendant appeals his conviction for aggravated child molestation. Held:

1. In his first enumeration of error, defendant contends the trial court erred in finding the victim, who was five years of age at the time of trial, competent to testify. "OCGA § 24-9-5 (formerly Code Ann. § 38-1607) provides: 'Persons who do not have the use of reason, such as idiots, lunatics during lunacy, and children who do not understand the nature of an oath, shall be incompetent witnesses.' In Smith v. State, 247 Ga. 511, 511-12 (277 SE2d 53) (1981), the Supreme Court defined the standard of competency of a child to be a witness as being '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 assumes a solemn and binding obligation 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 by the court.'

"Once a child's competency has been thoroughly tested in court, it is within the sound discretion of the trial court whether or not to rule the child competent to testify as a witness. Sullivan v. State, 162 Ga.App. 297(1) ( 291 SE2d 127) (1982); Allen v. State, 150 Ga.App. 605(2) ( 258 SE2d 285) (1979). Because the trial court has had the opportunity to observe the child during the competency examination and because such observation provides material indicia of competency (or the lack thereof) which this court cannot glean from a cold record, we will upset the ruling of competency only when the record clearly shows that the child was not competent as defined in Smith v. State, supra. See Sullivan v. State, supra; Bearden v. State, 159 Ga.App. 892(1) (285 SE2d 606) (1981); Allen v. State, supra; see also Hurst v. State, 166 Ga.App. 852(2) ( SE2d ) (1983). (For a case reversing on this ground, see Pace v. State, 157 Ga.App. 442(1) (278 SE2d 90) (1981)). A further reason for the hesitation of appellate courts to interfere with competency rulings is that the trial court's ruling as a matter of law that the child is competent (see OCGA § 24-9-7(a) (Code Ann. §§ 38-1601, 38-1610)) is followed by the jury's independent determination of the child's credibility as a matter of fact. See Hayes v. State, 152 Ga.App. 858(2) ( 264 SE2d 307) (1980)." Pope v. State, 167 Ga.App. 328(1), 329, 306 S.E.2d 326.

In the case sub judice, defendant argues that the victim's inconsistent testimony rendered her incompetent to testify. We do not agree. "Inconsistency in a child's testimony does not render her incompetent to testify. See Pendergrass v. State, 168 Ga.App. 190 (308 SE2d 585) (1983); Thomas v. State, 168 Ga.App. 587 (309 SE2d 881) (1983)...." Sprayberry v. State, 174 Ga.App. 574(1), 576, 330 S.E.2d 731. Although the victim could not say what an oath was, she demonstrated that she knew the difference between truth and falsehood, that telling a lie was wrong and could result in punishment. Further, the victim was subjected to thorough and sifting cross-examination by defense counsel as well as questions propounded by the court and the State's attorney. Under these circumstances, we find the requisites of Smith v. State, 247 Ga. 511, 512, 277 S.E.2d 53, supra, satisfied and that the trial court did not abuse its discretion in finding the victim competent to testify. See Sprayberry v. State, 174 Ga.App. 574(1), 330 S.E.2d 731, supra; and Runion v. State, 180 Ga.App. 440(2), 349 S.E.2d 288.

2. In support of his second and third enumerations of error, defendant asserts one convoluted argument challenging the testimony of the State's expert witness, Ms. Nancy Copeland Aldridge.

(a) First, we address defendant's third enumeration of error wherein he contends "[t]he Court erred in allowing testimony by the psychotherapist."

(1) The only objection raised by defendant at trial regarding Ms. Aldridge's qualifications to testify as an expert in child therapy was that "[s]he's only been in practice a year." " 'Nothing more is required to entitle one to give testimony as an expert than that he has been educated in the particular trade or profession, although the SPECIAL knowledge required to qualify as an expert may be derived from experience as well as study. See Dennis v State, 158 Ga.App. 142, 143(3) (279 SE2d 275); Carter v. Marble Products, 179 Ga. 122(1), 124-125 (175 SE 480)....' Inta-Roto, Inc. v. Guest, 160 Ga.App. 75, 76(1) (286 SE2d 61)." Patterson v. Lanham, 182 Ga.App. 343, 344(2), 345, 355 S.E.2d 738. In the case sub judice, Ms. Aldridge testified that she was formally educated in nursing, psychology and social work and that she gained an expertise in child therapy and abuse primarily through experience, having counseled "[a]round 400" children who have been sexually abused. Ms. Aldridge further testified that she has conducted independent research in the area of child abuse by studying literature pertaining to diagnosis and treatment of sexually abused children, attending seminars on various topics relating to child abuse and communicating with other experts in the field of child therapy. This testimony was sufficient to authorize the trial court's discretion in allowing Ms. Aldridge to testify as an expert in child abuse and therapy. See Allison v. State, 179 Ga.App. 303, 309(3), 346 S.E.2d 380, rev'd on other grounds at 256 Ga. 851, 353 S.E.2d 805.

(2) The only other argument which appears to relate to defendant's third enumeration of error and is preserved in the record is his challenge to Ms. Aldridge's hearsay testimony regarding statements made to her by the victim indicating that defendant had molested her.

OCGA § 24-3-16 provides: "A statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability." In the case sub judice, the five-year-old victim was available to testify and the trial court found the statement admissible under OCGA § 24-3-16 after considering the weight and credibility of the hearsay statements. Consequently, the trial court did not err in allowing such testimony. See Sanders v. State, 182 Ga.App. 581, 584(3), 356 S.E.2d 537.

(b) In his second enumeration of error, defendant contends "[t]he Court erred in allowing testimony by the expert that the child had been sexually molested based on the child sexual abuse accommodation syndrome." Although defendant's argument in support of this enumeration of error is unclear, it appears the basis of his complaint stems from Ms. Aldridge's testimony that the victim "fit" the "child sexual abuse accommodation syndrome," which she described as identifiable phases of behavioral indicators typically displayed by sexually abused children. At trial, defendant objected and argued that this testimony was inadmissible outside the realm of a hypothetical question because the State's expert witness based her opinion on information derived from sources other than her observations of the victim.

"A hypothetical question is not required where a properly qualified expert testifies as to his opinion based on facts within his personal knowledge. McDowell v. State, 239 Ga. 626(3) (238 SE2d 415) (1977)." Ware v. State, 252 Ga. 90, 91(3), 310 S.E.2d 908. " ' "Generally, an expert cannot state his opinion based upon observations or reports which are not admitted in evidence. (Cits.) On the other hand, an expert can give an opinion based upon facts which he personally observes. (Cits.) And where an expert personally observes data collected by another, his opinion is not objectionable merely because it is based, in part, upon the other's findings. (Cit.)" (Cit.)' Cochran v. State, 151 Ga.App. 478, 481 (260 SE2d 391) (1979)." Taylor v. State, 174 Ga.App. 900(2), 901, 331 S.E.2d 920.

In the case sub judice, Ms. Aldridge's opinion was not only based on observations and reports made by others, but also upon her observations of the victim during 11 counseling sessions which she conducted with the victim and her observations of videotaped interviews of the victim. Under these circumstances, the trial court did not err in overruling defendant's objection to Ms. Aldridge's testimony.

(c) Another assertion found in defendant's argument in support of his second and third enumerations of error is that the trial court erred in admitting expert testimony of the "child sexual abuse accommodation syndrome." However, defendant made no contemporaneous objection to this testimony. Consequently, any deficiency urged in this regard is waived. See Allison v. State, 256 Ga. 851(1)-(7), 353 S.E.2d 805, supra.

3. Defendant next contends the trial court erred in overruling his motion for directed verdict of acquittal.

"A person commits the offense of aggravated child molestation when he commits an offense of child molestation which act physically injures the child or involves an act of sodomy." OCGA § 16-6-4(c). In the case sub judice, the victim testified that defendant sodomized her at her grandparents' house. This testimony was corroborated by medical evidence which indicated that the victim had been sodomized; expert testimony that the victim displayed behavioral characteristics consistent with those of a child who has been sexually abused; and, testimony of witnesses regarding statements...