State v. Everett

390 S.E.2d 160, 98 N.C. App. 23, 1990 N.C. App. LEXIS 309
CourtCourt of Appeals of North Carolina
DecidedApril 3, 1990
Docket8912SC816
StatusPublished
Cited by5 cases

This text of 390 S.E.2d 160 (State v. Everett) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Everett, 390 S.E.2d 160, 98 N.C. App. 23, 1990 N.C. App. LEXIS 309 (N.C. Ct. App. 1990).

Opinions

LEWIS, Judge.

Defendant presents four assignments of error on appeal.

[26]*26I. The competence of the victim to testify.

Defendant alleges that the court erred in determining that the victim was competent to testify because the victim did not have “the capacity to understand the obligation of an oath.” The competency of witnesses to testify is determined by Rule 601 of the North Carolina Evidence Code which provides in pertinent part that “[e]very person is competent to be a witness” except “when the court determines that he is . . . (2) incapable of understanding the duty of a witness to tell the truth.” G.S. § 8C-1, Rule 601(a) & (b). The North Carolina Supreme Court has defined competency as “the capacity of the proposed witness to understand and to relate under the obligation of an oath facts which will assist the jury in determining the truth of the matters as to which it is called upon to decide.” State v. Fearing, 315 N.C. 167, 173, 337 S.E.2d 551, 554 (1985), quoting State v. Jones, 310 N.C. 716, 722, 314 S.E.2d 529, 533 (1984).

The portions of the voir dire record which are relevant to this discussion are included below:

Direct Examination by the State
Counsel for the State: Your Honor, if we could let the record reflect that I’m holding up a pencil. . . .
Q: If you told your grandma this was an umbrella when it’s really a pencil, what might your grandma do to you?
A: I guess might spank me.
Voir Dire Examination by the Court
Q: ... Do you know what happens to little boys and girls who don’t tell the truth?
A: I don’t know.
[27]*27Q: You’ve told us that you know the difference between the truth and a lie. Is that right? Do you know what a lie is?
A: (Pause.) Um, (pause), I don’t know.
Q: Okay. But in any event, you are telling me that you promise to tell the truth, is that right?
A: (No response.)
Q: Is that what you’re promising?
A: Hum?
Q: Pardon me? Do you promise to tell the truth?
A: Um-hum.

The victim also testified that it would not be the truth if the Assistant District Attorney said that a shoe was “Sammy or Lady,” or if she said that a cup was a dress. On two different subsequent occasions during voir dire, the victim stated that her grandma might spank her if the victim said something that wasn’t true.

The testimony in this case is very similar to that in State v. Hicks, a case involving the competency of a seven-year-old victim to testify, in which the Court held:

[A]lthough [the victim] did not understand her obligation to tell the truth from a religious point of view, and although she had no fear of certain retribution for mendacity, she knew the difference between the truth and a lie. . . . She indicated a capacity to understand and relate facts to the jury concerning defendant’s assaults upon her, and a comprehension of the difference between truth and untruth. She also . . . affirmed her intention to [tell the truth].

319 N.C. 84, 88-89, 352 S.E.2d at 424, 426 (1987). The victim in this case also demonstrated her capability to understand “the duty of a witness to tell the truth” as required by Rule 601.

The competency of a witness “is a matter which rests in the sound discretion of the trial judge in the light of his examination and observation of the particular witness.” State v. Turner, 268 N.C. 225, 230, 150 S.E.2d 406, 410 (1966). “Absent, a showing that the ruling as to competency could not have been the result of a reasoned decision, the ruling must stand on appeal.” State v. [28]*28Hicks, 319 N.C. at 89, 352 S.E.2d at 426. We hold that the victim’s testimony met the standards of Rule 601 and that the trial court did not err in finding that she was competent to testify.

II. The pediatrician’s testimony concerning the number of times sexual penetration took place.

The defendant brings forward on appeal a “limited objection” that the witness was allowed to give an opinion as to the number of times penetration had taken place.

The pediatrician testified that the victim stated, in response to the question: “Has anybody ever touched you down there [the vaginal area]?” “Um, [the defendant] touches me there,” and “He also puts his thing in me.” When the victim was asked “how many times,” she responded by holding “up two hands each with three fingers on them.” The expert witness then examined the victim.

The testimony to which the defendant objects was that penetration occurred, ' according to the witness’ “best judgment,” “more than twice or three times” but he could not “say any more specifically.”

Rule 702 of the North Carolina Rules of Evidence provides: “If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion.” G.S. § 8C-1, Rule 702. The expert witness could base his opinion on (1) his medical findings about the condition of the victim’s vaginal area and how it differed from normal, (2) his medical conclusion that such a condition would not usually occur from one assault or digital manipulation alone, and (3) the response of the victim when asked about the frequency of assault. He therefore possessed an adequate foundation for his conclusion.

The expert witness’ opinion testimony would be of assistance to the jury in evaluating his specific medical findings. It is for the jury to determine the weight of his testimony in light of the manner in which the witness qualified his opinion. The trial court did not err. »

[29]*29III. The testimony of the defendant’s daughter as to other crimes committed by defendant.

Defendant contends that the testimony of the defendant’s daughter concerning prior acts of misconduct should not have been admitted since that evidence does not meet any of the exceptions to the rule against such testimony and since it was unfairly prejudicial. The relevant Rule of Evidence, Rule 404(b) states:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.

The Supreme Court has been quite “liberal in admitting evidence of similar sex crimes” under the common plan or scheme exception. State v. Effler, 309 N.C. 742, 748, 309 S.E.2d 203, 207 (1983).

State v.

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Related

State v. Huntley
411 S.E.2d 155 (Court of Appeals of North Carolina, 1991)
State v. Everett
399 S.E.2d 305 (Supreme Court of North Carolina, 1991)
State v. Davis
398 S.E.2d 645 (Court of Appeals of North Carolina, 1990)
State v. Everett
390 S.E.2d 160 (Court of Appeals of North Carolina, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
390 S.E.2d 160, 98 N.C. App. 23, 1990 N.C. App. LEXIS 309, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-everett-ncctapp-1990.