J.B.J. v. State

17 So. 3d 312, 2009 Fla. App. LEXIS 7203
CourtDistrict Court of Appeal of Florida
DecidedJune 9, 2009
DocketNo. 1D08-5476
StatusPublished
Cited by4 cases

This text of 17 So. 3d 312 (J.B.J. v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
J.B.J. v. State, 17 So. 3d 312, 2009 Fla. App. LEXIS 7203 (Fla. Ct. App. 2009).

Opinion

PER CURIAM.

Appellant, J.B.J., appeals an order of adjudication of delinquency for the offense of sexual battery by a person under the age of eighteen on a victim under the age of twelve. Appellant argues that the trial court abused its discretion in finding the four-year-old victim competent to testify and in allowing the investigating officer to give hearsay testimony. We agree. Accordingly, we reverse and remand for a new trial.

Prior to trial, the court and Appellant’s counsel questioned the victim to determine whether she was competent to testify:

[314]*314BY THE COURT:
Q: .... You know the difference between telling the truth and telling a lie, don’t you?
A: Unh-unh (negative).
Q: You don’t?
A: Unh-unh (negative).
Q: Do you know what it means to say what is true and what is not true?
A: No.
Q: If I were to say the robe I’m wearing is white, would that be true, or would that be a lie?
A: Alie.
Q: ... [W]hat color is my robe?
A: Black.
Q: And does that help you understand the difference between telling the truth and telling a lie?
A: Yes.
BY [DEFENSE COUNSEL]:
Q: ... [C]an you tell me what it means to tell the truth?
A: Yes. If you tell the truth, you — and if you don’t tell the truth, you go to bed.... I don’t know what to say....
COURT: Okay. If you don’t tell the truth, you go to bed is what you said. And if you do tell the truth, you get to stay up.
A: [Appellant] had pulled his pee-pee out.... And he made me suck his pee-pee.
BY [DEFENSE COUNSEL]:
Q: ... do you remember coming in and talking to me about four weeks ago?
A: No.
Q: Do you remember when you were sitting on a big couch?
A: Yes.
Q: And I asked you some questions; do you remember that?
A: Yes.
Q: Okay. And have you watched a movie with you talking to a lady in it?
A: No.
Q: Did you ever watch that movie with Ms. Beth over here?
A: No.
Q: Before you came into this room today, did you talk to Ms. Beth? This (indicating) is Ms. Beth.
A: Yes.
Q: And did you talk to Ms. Beth about truth and lie?
A: Yes.
Q: And did you talk to Ms. Beth about what you were going to say?
A: Yes.
Q: .... [I]sn’t it true that you once watched a movie with Ms. Beth where you were talking to a lady about [Appellant]?
A: Yes.
Q: Okay. Did you see that movie today?
A: No.
Q: Okay. Now isn’t it true then ... that to tell the truth means that you get a surprise?
A: Yes.
Q: And all that happens when you don’t tell the truth is you don’t get a surprise?
A: Yes.
Q: ... [Y]ou have never gotten into trouble for not telling the truth, have you?
A: No.
Q: [W]hat day is your birthday?
A: I don’t know.
[315]*315Q: And where do you live?
A: Huh? No.
Q: Okay. You don’t know where you live ... ?
A: Yes, I do.
Q: Do you know the address of where you live?
A: No.
BY [COUNSEL FOR THE STATE]:
Q: ... [Y]ou told [defense counsel] that when you lie, or when you tell the truth, you get surprises, right?
A: Yes.
Q: What is surprises?
A: Surprises are when you get candy and something else. I don’t know what else.
Q: Is getting surprises a good thing?
A: Yes.
Q: Okay. Is not getting surprises a bad thing?
A: No.
Q: Now, when you talked about telling the truth and telling a lie, is telling a lie a bad thing?
A: Yes.
Q: Okay. And what happens when you do bad things?
A: You go to bed.
Q: You go to bed?
A: Yes.
Q: Do you like going to bed?
A: No.
Q: Why don’t you like going to bed?
A: Because in the morning time, you got to wake up. I don’t like going to bed at morning.
Q: Now, is going to bed a good thing or bad thing?
A: A bad thing.
Q: When your mom tells you or your dad tells you to go to bed, is it because you’ve been good?
A: Yes.
Q: You go to bed when you have been good?
A: Yes.
Q: When they tell you to go to bed-have they ever told you to go to bed as a punishment?
A: No.
Q: No, they never told you to go to bed as a punishment?
A: No.
Q: What do they do when they punish you?
A: Put me in the room.
Q: Okay. Is that a bad thing, to be put in the room?
A: Yes.
Q: Okay. Now, when the judge talked to you, he asked if you would tell us the truth today; would you do that?
A: Yes.
Q: Okay. Now if you don’t tell us the truth today, would you be doing something bad?
A: Yes.
Q: Okay. So you want to tell us the truth today; is that right?
A: Yes.
BY [DEFENSE COUNSEL]:
Q: Did you get presents last Christmas?

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Bluebook (online)
17 So. 3d 312, 2009 Fla. App. LEXIS 7203, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jbj-v-state-fladistctapp-2009.