Seccia v. State

689 So. 2d 354, 1997 WL 63015
District Court of Appeal of Florida·Decided February 18, 1997·No. 96-904·Published·Cited by 8 cases

Opinion

689 So.2d 354 (1997)

Richard SECCIA, Appellant,
v.
STATE of Florida, Appellee.

No. 96-904.

District Court of Appeal of Florida, First District.

February 18, 1997.
Rehearing Denied March 26, 1997.

Nancy A. Daniels, Public Defender; Paula S. Saunders, Assistant Public Defender, Tallahassee, for Appellant.

Robert A. Butterworth, Attorney General; Stephen R. White, Assistant Attorney General, Tallahassee, for Appellee.

WEBSTER, Judge.

In this direct criminal appeal, appellant seeks review of his convictions for sexual battery upon a child younger than age 12 and two counts of a lewd, lascivious or indecent act upon a child. Because the evidence established the commission of only one lewd act, the trial court should have granted appellant's motion for a judgment of acquittal as to the second count. Accordingly, we reverse the second conviction for a lewd act, and remand with directions that the trial court enter a judgment of acquittal. Because the trial court abused its discretion when it found that the alleged child victim was competent to testify without first conducting an adequate competency examination, we also reverse the remaining convictions, and remand them for a new trial.

All of the charges involved the same alleged victim. He was six years old at the time of trial. Prior to his testimony, appellant's counsel questioned his competence to testify, and requested the trial court to make a determination regarding competence. The record then reflects the following:

BY THE COURT:
Q .... How are you doing?
A Fine.
*355 Q .... Tell me what your name is.
A [Child states name.]
. . . .
Q .... How old are you ...?
A Six.
Q Do you go to school now?
A (Nodding head)
Q Do you know the name of the school where you go?
A Yes.
Q What is the name of it?
A (No response)
Q Are you in first grade?
A No. I'm in kindergarten.
Q Kindergarten?
A Yes.
Q Do you know what day your birthday is?
A No.
Q But you are six now?
A (Indicating affirmative)
Q Where do you live?
A At the trailer park.
Q Where is the trailer park? Do you know what the address of it is?
A (Indicating negative)
Q Who do you live with there?
A My mom and my dad and my sister.
Q Your mother, dad and sister?
A Yes.
Q What is your sister's name?
A [Child state's sister's name]
Q Do you go to church anywhere at all?
A Yes.
Q Do you know what it means to tell— to have to tell the truth?
A Yes.
Q Do you know you are supposed to tell the truth all the time?
A Yes.
Q Yes?
A Yeah.
Q Do you know what it means to lie and not tell the truth?
A Yes.
Q Let me ask you if you don't tell the truth what might happen to you? Do you know?
A No.
Q Do you think you would be in a lot of trouble if you don't tell the truth?
A Yes.
Q Do you remember last Christmas? [The questions were being asked on February 12.]
A No.
Q You don't remember last Christmas what you got for Christmas?
A No.
. . . .
Q Do you remember coming down here last Friday to the courthouse and talking to these folks here?
A Yeah.
Q .... When you talked to them, did you tell them the truth about everything?
A Yes.
Q .... Do you know where you go to church?
A No.
Q Did you go last week to church? Or do you go to church very often?
A Very often.
Q .... Did you go to church last week?
A No.
BY [DEFENSE COUNSEL]:
. . . .
Q Do you remember—you said you don't know when your birthday is, right?
A No.
Q Do you remember how old you were when you had your last birthday?
A Yes.
Q How old did you turn?
A Six.
Q Six?
A Yes.
Q .... Did you have a party for your birthday?
A Yes.
Q What did you do for your birthday?
A We went to Chuck E Cheese's.
*356 Q Chuck E Cheese's?
A Yeah.
Q .... Do you do that every year or just last year?
A Last year.
Q .... Do you remember anything that you got for Christmas?
A No.
Q This last year?
A No.
Q You didn't get anything at all?
A (No response)
THE COURT: I asked him already, but go ahead.
A Yes.
BY [DEFENSE COUNSEL]:
Q You said you did get something?
A Yes.
Q You don't remember what?
A No.
Q ... [D]o you know why it's important for you to tell the truth today?
A No.
Q You don't?
A (Indicating affirmative)
. . . .
Q Let me ask you again ...; Do you know why it's important to tell the truth today?
A No.
. . . .
BY THE COURT:
Q .... You do know, though, that when you are down here that you have to tell us the truth, right? Do you understand that?
A Yes.
Q And do you also understand that if you don't tell the truth you will get in lots and lots of trouble, right?
A Yes.
Q .... And when you talk to us today you are going to tell the truth; Is that right?
A Yes.

Appellant's counsel then objected to the child testifying, arguing that the examination of the child had failed to demonstrate that he was competent. The trial court overruled the objection, and the child was permitted to testify.

In Griffin v. State, 526 So.2d 752 (Fla. 1st DCA 1988), this court said:

[W]hen a child's competency is at issue, the trial court should consider (1) whether the child is capable of observing and recollect

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Seccia v. State, 689 So. 2d 354, 1997 WL 63015 (Fla. Ct. App. 1997).

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