Warner v. State

218 S.W.3d 330, 93 Ark. App. 233
CourtCourt of Appeals of Arkansas
DecidedNovember 30, 2005
DocketCA CR 05-452
StatusPublished
Cited by8 cases

This text of 218 S.W.3d 330 (Warner v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Warner v. State, 218 S.W.3d 330, 93 Ark. App. 233 (Ark. Ct. App. 2005).

Opinion

Wendell L. Griffen, Judge.

Clifton Robert Warner ap-udge. for rape. He argues that the trial court erred in allowing testimony regarding a hearsay statement that the victim made and erred in determining that the victim, who was seven years old at the time of the trial, was competent to testify. We disagree and affirm.

Appellant is not related to the victim but was living with the victim’s family at the time the alleged abuse occurred. The victim, K.P., who was then five years old, alleged that appellant touched her on the inside of her “pee pee” with his finger. K.P. initially confided in her uncle, Billy Powell, while visiting Powell and his family in Oklahoma. She later disclosed the events to the Children’s Advocacy Center in Little Rock, Arkansas.

Based on K.P.’s allegations, appellant was charged with rape as a habitual offender. During pre-trial proceedings, appellant made an oral motion in limine to exclude the hearsay testimony of K.P.’s second cousin, Debbie Pulliam, regarding an incriminating statement made by K.P. after the alleged event. The trial court held a hearing and denied appellant’s motion on the ground that K.P.’s statement qualified as an excited-utterance exception to hearsay pursuant to Ark. R. Evid. 803(2). At the subsequent jury trial, Pulliam testified that when K.P. saw her sister getting into a truck in which the defendant was a passenger, K.P. shouted, “Robert, don’t you hurt my sister like you hurt me.”

The issue of K.P.’s competency arose during the trial. When the State attempted to call her as a witness, she initially indicated in the jury’s presence that she did not know the difference between the truth and a lie. The court then conducted a sua sponte hearing outside of the jury’s presence. After subsequent questioning of K.P., the court was ultimately convinced that she was competent. K.P. thereafter testified that appellant touched her on the inside of her “pee pee” with his finger and that it made her feel “scared” and “all shaky.” She also identified appellant in court as the offender. The jury found appellant guilty and sentenced him to serve twenty years in the Arkansas Department of Correction. This appealed followed.

I Witness Competency

Although appellant challenges the trial court’s determination that K.P. was competent to testify in his second point on appeal, we address this issue first before considering any eviden-tiary errors. The question of the competency of a witness is a matter lying within the sound discretion of the trial court and in the absence of clear abuse, we will not reverse on appeal. Clem v. State, 351 Ark. 112, 90 S.W.3d 428 (2002). Any witness is presumed to be competent unless proven otherwise. Id.; Ark. R. Evid. 601. The party alleging that a witness is incompetent has the burden of persuasion. Clem, supra. The issue of the competency of a witness is one in which the trial judge’s evaluation is particularly important due to the opportunity he is afforded to observe the witness and the testimony. Clem, supra.

A witness’s competency may be established by the following criteria: (1) the ability to understand the obligation of an oath and to comprehend the obligation imposed by it; or (2) an understanding of the consequences of false swearing; or (3) the ability to receive accurate impressions and to retain them, to the extent that the capacity exists to transmit to the fact finder a reasonable statement of what was seen, felt, or heard. Clem, supra. As long as the record is one upon which the trial judge could find a moral awareness of the obligation to tell the truth and an ability to observe, remember, and relate facts, we will not hold there has been a manifest error or abuse of discretion in allowing the testimony. Clem, supra.

Further, in a case involving the rape of a child, the trial court is in the best position to determine the child’s intelligence and understanding of the need to tell the truth. Conley v. State, 20 Ark. App. 56, 723 S.W.2d 841 (1987). In determining the competency of a child witness, the trial court will examine the child’s testimony in its entirety and will not solely rely on the preliminary questioning. Id.

The competency hearing proceeded as follows:

Court: Would you tell me what your name is?
A: [K.P.]
Court: And what is your last name?
A: [K.P.]
Court: And how old are you [K.P.]?
A: Seven.
Court: Eleven?
A: Seven.
Court: Seven, okay and [K.P.] do you know what the truth is?
A: Yes.
Court: Do you know what a he is?
A: Um hum —
Court: You don’t, you don’t know the difference? What do you think the truth is?
A: The truth is —
Court: I’m sorry?
A: — what Robert did. The truth is what Robert did.
Court: Well, what’s a lie?
A: I don’t know the He.
Court: I’m sorry?
A: I don’t know the he.
Court: You don’t know what, you don’t lie or you don’t—
A: I don’t know it.
Court: You don’t know it, you didn’t do it.
A: I don’t know the he.
Prosecution Examination:
Q: Hey [K.P.], when we talked about this today do you know the difference between the truth and a lie?
A: No.
Q: Are you going to tell the truth today?
A: Yes.
Q: Okay, are you — you know, we talked about raising your right hand and having to tell the truth?
A: Yes.
Q: Okay.
Q: Are you satisfied, Judge?
Court: No.
Q: Hey, [K.P.], do you know what a lie is, do you know that a lie is not telling the truth?
A: Yes.

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Bluebook (online)
218 S.W.3d 330, 93 Ark. App. 233, Counsel Stack Legal Research, https://law.counselstack.com/opinion/warner-v-state-arkctapp-2005.