Barnes v. State

Court of Appeals of Georgia

Barnes v. State

328 S.E.2d 583, 173 Ga. App. 907, 1985 Ga. App. LEXIS 2689

CourtCourt of Appeals of Georgia

DecidedMarch 15, 1985

Docket69605

StatusPublished

Cited by3 cases

This text of 328 S.E.2d 583 (Barnes v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Barnes v. State, 328 S.E.2d 583, 173 Ga. App. 907, 1985 Ga. App. LEXIS 2689 (Ga. Ct. App. 1985).

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Opinions

Banke, Chief Judge.

The appellant was convicted of sexually molesting a 5-year-old child. In this appeal, he enumerates as error the trial court’s ruling that the child was competent to testify. He also questions the sufficiency of the evidence. Held:

1. “[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 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.” Smith v. State, 247 Ga. 511 (277 SE2d 53) (1981).

During the competency hearing, the witness clearly indicated that she knew she would be punished if she did not tell the truth and that she knew it would be wrong to tell an untruth. She further demonstrated her competency during the course of her testimony regarding the commission of the alleged offense. “Any apparently inconsistent testimony presented by the [child] does not render the [child] incompetent to testify as a matter of law, but is a matter for consideration by the trial court in making its determination of competency and by the jury in determining the credibility of the witnesses.” Thomas v. State, 168 Ga. App. 587 (3) (309 SE2d 881) (1983). “The trial court’s determination of competency will not be disturbed absent abuse of discretion.” Bearden v. State, 159 Ga. App. 892 (1) (285 SE2d 606) (1981). In this case, we find no such abuse.

2. Our review of the record and transcript convinces us that the jury was presented with sufficient evidence from which they could find the appellant guilty of child molestation beyond a reasonable doubt. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). The child testified that appellant touched her between her legs, and her mother testified that she noticed blood between the child’s legs when she bathed her on the evening of the assault.

Judgment affirmed.

Deen, P. J., McMurray, P. J., Birdsong, P. J, Carley, Sognier, and Beasley, JJ., concur. Pope and Benham, JJ., dissent. [908]*908Decided March 15, 1985. Larry B. Mims, Emerson D. Henderson, for appellant. David E. Perry, District Attorney, Leonard M. Geldon, Assistant District Attorney, for appellee.

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Banke, Chief Judge.

The appellant was convicted of sexually molesting a 5-year-old child. In this appeal, he enumerates as error the trial court’s ruling that the child was competent to testify. He also questions the sufficiency of the evidence. Held:

1. “[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 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.” Smith v. State, 247 Ga. 511 (277 SE2d 53) (1981).

During the competency hearing, the witness clearly indicated that she knew she would be punished if she did not tell the truth and that she knew it would be wrong to tell an untruth. She further demonstrated her competency during the course of her testimony regarding the commission of the alleged offense. “Any apparently inconsistent testimony presented by the [child] does not render the [child] incompetent to testify as a matter of law, but is a matter for consideration by the trial court in making its determination of competency and by the jury in determining the credibility of the witnesses.” Thomas v. State, 168 Ga. App. 587 (3) (309 SE2d 881) (1983). “The trial court’s determination of competency will not be disturbed absent abuse of discretion.” Bearden v. State, 159 Ga. App. 892 (1) (285 SE2d 606) (1981). In this case, we find no such abuse.

2. Our review of the record and transcript convinces us that the jury was presented with sufficient evidence from which they could find the appellant guilty of child molestation beyond a reasonable doubt. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). The child testified that appellant touched her between her legs, and her mother testified that she noticed blood between the child’s legs when she bathed her on the evening of the assault.

Judgment affirmed.

Deen, P. J., McMurray, P. J., Birdsong, P. J, Carley, Sognier, and Beasley, JJ., concur. Pope and Benham, JJ., dissent. [908]*908Decided March 15, 1985. Larry B. Mims, Emerson D. Henderson, for appellant. David E. Perry, District Attorney, Leonard M. Geldon, Assistant District Attorney, for appellee.

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328 S.E.2d 583, 173 Ga. App. 907, 1985 Ga. App. LEXIS 2689, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barnes-v-state-gactapp-1985.

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