State v. Anderson

526 So. 2d 499, 1988 WL 49482
Louisiana Court of Appeal·Decided May 17, 1988·No. KA 87 1494·Published·Cited by 11 cases

Opinion

526 So.2d 499 (1988)

STATE of Louisiana
v.
Frank J. ANDERSON, Jr.

No. KA 87 1494.

Court of Appeal of Louisiana, First Circuit.

May 17, 1988.
Rehearing Denied June 24, 1988.

*500 William R. Campbell, Jr., New Orleans, for State.

Walter Reed, Dist. Atty., Covington, for appellee.

James H. Looney, Office of Indigent Defender, Covington, for appellant.

Before COVINGTON, SAVOIE and LeBLANC, JJ.

LeBLANC, Judge.

Frank J. Anderson, Jr. was charged by bill of information with sexual battery, a violation of La.R.S. 14:43.1. He was tried by a jury, which returned the responsive verdict of guilty of attempted sexual battery. The trial court imposed a sentence of two years at hard labor. Defendant appealed, urging five assignments of error, as follows:

1. The court erred by qualifying a four year old child as a witness.

2. The court erred by allowing hearsay to be admitted into evidence.

3. The court erred by making prejudicial remarks in the hearing of the jury.

4. The evidence was insufficient.

5. The court imposed an excessive sentence.

FACTS

Defendant was charged with the sexual battery of a female girl, four years old at the time of the incident. The child was a babysitting client of his sister, Lisa Anderson. The parents of the victim were divorced, and the children stayed with their mother; however, their father enjoyed extensive visitation rights and maintained a close relationship with the girls. Ms. Anderson cared for the victim, her twin sister, and a brother in their home while the children's mother attended school. The state alleged that the incident occurred at the apartment Ms. Anderson shared with defendant.

The victim and her father were the only two state witnesses. The victim's father testified that he became suspicious when his daughter told him that, "Mr. Frankie has one of those," after she saw her father in loose fitting clothes that partially revealed his penis. She later told him that the defendant had shown her his penis. The victim's father further testified that he felt unqualified to deal with the suspected sexual abuse and changed the subject to prevent a discussion until his daughter could speak to someone with training in the area.

*501 The original statement was made on a Saturday; and, on the following Monday or Tuesday, the victim's father reported the incident to the Slidell Police Department. The victim then spoke to a female officer, relating the details of the offense to the officer in her father's presence. At trial, over defendant's objection, her father testified the victim told them that defendant brought her into Lisa Anderson's bedroom, pulled her panties down, "placed his private on her private, and peed on the carpet." The victim also testified at trial and confirmed the statement she had previously given to the police officer.

Defendant testified on his own behalf. He denied the contact and claimed that he had never been alone with the children. Defendant also presented the testimony of other members of his family and his sister's housekeeper to establish that he was never alone with the children and, therefore, the incident could not have occurred.

COMPETENCY OF THE VICTIM

By assignment of error number one, defendant claims the trial court erred by finding the victim, who was five years old at the time of trial, was competent to testify. He contends the examination conducted by the court was not sufficient to determine the victim's competency because the court's questions required only that she nod her head affirmatively in order to respond and the victim was not required to speak.

La.R.S. 15:469 provides for the determination of the competency of a witness, as follows:

Understanding, and not age, must determine whether any person tendered as a witness shall be sworn; but no child less than twelve years of age shall, over the objection either of the district attorney or of the defendant, be sworn as a witness, until the court is satisfied, after examination, that such child has sufficient understanding to be a witness.

Initially, we note that defendant failed to object to the court's determination of the victim's competency and, thus, waived his right to contest that ruling. Defendant acknowledges his failure to lodge a contemporaneous objection but argues his complaint should be considered despite his failure to comply with La.C.Cr. P. art. 841 because the claimed error involves the court's breach of a clear affirmative duty affecting the heart of the fact finding process. This argument is not persuasive. In any event, La.R.S. 15:469 provides that the objection is waived unless raised by one of the parties. Thus possible exceptions to the contemporaneous objection rule are not applicable to this case. See also, State v. Alphonso, 496 So.2d 1113, 1115 (La.App. 4th Cir.1986).

In any event, this assignment of error has no merit. The determination by the trial judge that a child witness is competent to testify is based not only upon the child's answers to questions testing his understanding but also on the child's overall demeanor on the witness stand. State v. Humphrey, 412 So.2d 507, 516 (La.1981). For that reason, the court is vested with wide discretion in determining competency; and, on appeal, the court's ruling is entitled to great weight. State v. Noble, 342 So.2d 170 (La.1977). A ruling by the trial judge that a witness is competent to testify will not be disturbed in the absence of manifest error. State v. Arnaud, 412 So.2d 1013 (La.1982).

The record reflects that the trial judge examined the child in compliance with the statutory requirement. The victim's responses affirmed that she knew the difference between telling the truth and telling a lie. She also indicated that she knew it was important for her to tell the truth about the events she remembered and promised to tell the truth.

Defendant does not contend that the victim's responses to the court examination indicated the witness was not competent. Rather, defendant complains that the court's questions were leading and were not capable of providing enough information for the ruling. However, the court's ruling was not based entirely on the responses made by the witness during the predicate examination but included its observations of the victim's conduct on the *502 stand. Although the court did not require the witness to respond verbally, the child's answers demonstrated her awareness of the importance of the proceedings and the necessity that she tell the truth. Moreover, defense counsel did not attempt to cross examine the victim to demonstrate that the victim was incompetent. See, State v. Peters, 441 So.2d 403, 408 (La.App. 4th Cir.1983). Therefore, we find no manifest error in the court's determination that the victim was competent to testify.

ADMISSION OF HEARSAY TESTIMONY

By assignment of error number two, defendant submits that the court erred by permitting the victim's father to testify about the contents of her statement to the police. He contends that this testimony was inadmissible hearsay.

Defendant admits that introduction of the initial complaint of sexual abuse is possible through an exception to the general rule prohibiting the introduction of hearsay testimony. He argues, however, that the initial complaint of the victim was made to her father; and, therefore, the content of the statement she made to an officer of the Sli

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State v. Anderson, 526 So. 2d 499, 1988 WL 49482 (La. Ct. App. 1988).

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