State v. Bennett

591 So. 2d 1193, 1991 WL 255259
CourtLouisiana Court of Appeal
DecidedNovember 22, 1991
DocketKA 90 1644
StatusPublished
Cited by19 cases

This text of 591 So. 2d 1193 (State v. Bennett) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Bennett, 591 So. 2d 1193, 1991 WL 255259 (La. Ct. App. 1991).

Opinion

591 So.2d 1193 (1991)

STATE of Louisiana
v.
Benjamin BENNETT.

No. KA 90 1644.

Court of Appeal of Louisiana, First Circuit.

November 22, 1991.
Writ Denied March 26, 1992.

*1194 John D. Schoonenberg, Asst. Dist. Atty., Houma, for plaintiff and appellee, State of La.

Roy A. Jefferson, Jr., Office of Indigent Defenders, Houma, for defendant and appellant, Benjamin Bennett.

Before COVINGTON, C.J., and SAVOIE and LeBLANC, JJ.

LeBLANC, Judge.

The defendant, Benjamin Bennett, was charged by grand jury indictment with aggravated rape, a violation of La.R.S. 14:42 A(4). He pled not guilty and, after trial by jury, was found guilty as charged. He received the mandatory sentence of life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. The defendant has appealed, alleging eleven assignments of error, as follows:

1. The trial court erred in allowing the five year old victim to testify at the trial.
2. The trial court erred in allowing the victim's videotaped statement to be admitted into evidence at the trial.
3. The trial court erred in allowing the testimony of two State witnesses.
4. The trial court erred in allowing the victim's mother to relate what she had been told about the incident by the victim.
5. The trial court erred in sustaining the State's objection during the cross-examination of the victim's mother.
6. The trial court erred in allowing a State witness, Vickie Simmons, to relate what she had been told about the incident by the victim.
7. The trial court erred in allowing a State witness, Jessica Morgel, to relate what she had been told about the incident by the victim.
*1195 8. The trial court erred in denying the defendant's motion for a mistrial.
9. The jury's verdict was contrary to the law and evidence.
10. The trial court erred in denying the defendant's motion for a new trial.
11. The trial court erred in denying the defendant's motion for post-verdict judgment of acquittal.

In October of 1989, the victim, who was a four year old female, and her mother were living with the latter's godmother, Vickie Simmons, in Morgan City, Louisiana. Mrs. Simmons had two daughters, Jessica and Elizabeth Morgel. The defendant is the victim's father, although he and the victim's mother never married. The defendant lived with his mother, grandmother, and other relatives in Gibson, Louisiana. The victim occasionally visited the defendant and his relatives.

On Friday, October 6, 1989, Mrs. Simmons and the victim's mother took the victim to Gibson to spend the weekend with the defendant and his family. Although the victim had apparently expressed a desire to visit her grandmother (the defendant's mother), she cried when she arrived and did not want to stay. After apparently being scolded by her mother, the victim changed her mind and decided to stay with the defendant's relatives for the weekend.

Mrs. Simmons and the victim's mother picked up the victim Sunday afternoon, October 8. At some point, the victim had informed Jessica Morgel that the defendant was "nasty" and that he had played with her "private". Jessica Morgel related this information to her mother and/or the victim's mother. When Mrs. Simmons and the victim's mother questioned the victim, she informed them that the defendant had touched her "private spot" with his "private spot". Mrs. Simmons and the victim's mother immediately reported the incident to the police. The victim made a videotaped statement (State Exhibit One) in which she related details of the incident. On the evening of October 8, Dr. Ann Lozes examined the victim and determined that her hymen was red and swollen. Dr. Lozes also noted a tear or abrasion in the victim's hymen and concluded that she had suffered an injury or trauma to the vaginal area within twenty-four to forty-eight hours of the examination.

The defendant testified that he did not molest the victim and that he was never alone with the victim that weekend. The defendant's mother, grandmother, and two nephews also testified that the defendant was not alone with the victim that weekend.

ASSIGNMENT OF ERROR NO. ONE:

In this assignment of error, the defendant contends that the trial court erred in allowing the victim to testify. Specifically, he contends that the victim, who was four years old when the offense occurred and five years old at the time of trial, was not a competent witness.

Every person of proper understanding is competent to be a witness except as otherwise provided by legislation. La.C.E. art. 601. Understanding, and not age, is the test of whether any person shall be sworn as a witness.[1]State v. Francis, 337 So.2d 487, 489 (1976). The determination by the trial court that a child is competent to testify as a witness is based not only upon the child's answers to questions testing his understanding, but also upon the child's overall demeanor on the witness stand. State v. Racca, 525 So.2d 1229, 1232 (La.App. 1st Cir.1988). The determination as to whether a child has sufficient understanding to testify is entitled to great weight because the trial court has the advantage of seeing and hearing the witness. State v. Dees, 439 So.2d 614, 616 (La.App. 1st Cir.1983). Therefore, the trial court is vested with wide discretion in determining the competency of child witnesses; and, on appeal, its ruling is entitled to great weight and will not be disturbed in the absence of manifest error. State v. Anderson, 526 So.2d 499, 501 (La.App. 1st Cir.1988), writ denied, 537 So.2d 1160 (1989).

After reviewing the record, we find no error in the trial court's decision to *1196 allow the witness to testify. Out of the jury's presence, the trial court examined the witness in order to determine her competency. The witness correctly stated her age, street address, hometown, and school. The trial court asked the witness if she knew what it meant to tell the truth and to tell a lie. The witness responded in the affirmative. When asked if she believed in God, and if God expected her to tell the truth in the courtroom, the witness responded in the affirmative to both questions. Although the trial court gave defense counsel the opportunity to question the witness in order to attack her competency, defense counsel declined to do so. See State v. Anderson, 526 So.2d at 502. Instead, defense counsel simply objected to the trial court's competency determination on the basis that the witness was "timid". The trial court agreed that the witness was timid but overruled defense counsel's objection and allowed the victim to testify. For the above reasons, we conclude that the trial court's ruling was correct.

This assignment of error is meritless.

ASSIGNMENT OF ERROR NO. TWO:

In this assignment of error, the defendant contends that the trial court erred in allowing State Exhibit One to be admitted into evidence over his objection.

State Exhibit One was a videotape of the victim's statement taken pursuant to La. R.S. 15:440.1, et. seq. At the trial, defense counsel offered numerous objections to State Exhibit One, all of which were overruled by the trial court.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Gorman
166 So. 3d 356 (Louisiana Court of Appeal, 2015)
State ex rel. N.F.
124 So. 3d 1262 (Louisiana Court of Appeal, 2013)
State in the Interest of N. F.
Louisiana Court of Appeal, 2013
State v. Handon
952 So. 2d 53 (Louisiana Court of Appeal, 2006)
State v. Staton
922 So. 2d 1216 (Louisiana Court of Appeal, 2006)
State of Louisiana v. Stanford Dewayne Staton
Louisiana Court of Appeal, 2006
State v. Deutor
842 So. 2d 438 (Louisiana Court of Appeal, 2003)
State v. Taylor
821 So. 2d 633 (Louisiana Court of Appeal, 2002)
State v. Young
764 So. 2d 998 (Louisiana Court of Appeal, 2000)
State v. Miles
739 So. 2d 901 (Louisiana Court of Appeal, 1999)
State v. Cedrington
725 So. 2d 565 (Louisiana Court of Appeal, 1998)
State v. Fields
691 So. 2d 747 (Louisiana Court of Appeal, 1997)
State v. Berry
684 So. 2d 439 (Louisiana Court of Appeal, 1996)
State v. Linson
654 So. 2d 440 (Louisiana Court of Appeal, 1995)
State v. Stracener
651 So. 2d 463 (Louisiana Court of Appeal, 1995)
State v. Allen
647 So. 2d 428 (Louisiana Court of Appeal, 1994)
State v. Troulliet
643 So. 2d 1267 (Louisiana Court of Appeal, 1994)
State v. Stewart
641 So. 2d 1086 (Louisiana Court of Appeal, 1994)
State v. Dixon
628 So. 2d 1295 (Louisiana Court of Appeal, 1993)
State v. Bennett
594 So. 2d 1315 (Supreme Court of Louisiana, 1992)

Cite This Page — Counsel Stack

Bluebook (online)
591 So. 2d 1193, 1991 WL 255259, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bennett-lactapp-1991.