Wilson v. State

610 P.2d 184, 96 Nev. 422, 1980 Nev. LEXIS 608

• Court: Nevada Supreme Court
• Decided: April 30, 1980
• Docket: 10918
• Status: Published

Opinions

OPINION

By the Court,

Mowbray, C. J.:

Gerald Dewayne Wilson appeals from his conviction of attempted sexual assault on a minor under the age of fourteen years, NRS 200.366. We affirm.

Wilson’s sole contention on appeal is that an eight year old witness was incompetent and his testimony, therefore, should not have been admitted into evidence. At trial, the child testified that Wilson had forced his way into the apartment in which the child was alone with his twenty-three month old sister, had taken the infant into the bedroom and had committed the sexual assault. The child further testified that Wilson then left, threatening him with harm if he told anyone of the crime.

Prior to receiving the testimony, the trial court conducted a voir dire examination of the child and found him competent to testify. Wilson had been charged with sexual assault. The jury, however, returned a verdict of guilty of attempted sexual assault, apparently finding that there was insufficient evidence of penetration to constitute the crime of sexual assault.¹

The standard of competence for a child witness is that the child must have the capacity to receive just impressions and possess the ability to relate them truthfully. Fields v. Sheriff, 93 Nev. 640, 572 P.2d 213 (1977). A trial court’s finding of competence will not be reversed on appeal absent a clear abuse of discretion. Terrible v. State, 78 Nev. 159, 370 P.2d 51 (1962). On appeal, this Court is not confined to a review of the voir dire examination; rather, we look to the subsequent testimony as well, which may support a finding of competence “if clear, relevant and coherent.” Id. at 160, 370 P.2d at 51.

Appellant refers us to various inconsistencies in the child’s testimony and in the voir dire examination, contending that they establish the child’s incompetence. Inconsistencies in testimony go to the weight to be given the evidence by the jury rather than to the question of competence. Shuff v. State, 86 Nev. 736, 739, 476 P.2d 22, 24 (1970); State v. Shambo, 322 P.2d 657 (Mont. 1958). Moreover, the inconsistencies referred to by appellant relate to matters peripheral to the crime alleged: the testimony reveals that at the time of trial (approximately nine months after the commission of the crime), the child had difficulty remembering whether he had spoken to police officers at the time of the incident, could not remember in detail what he was doing in the general time period surrounding the event, and was easily confused by cross examination relating to his previously given testimony. The child’s account of the crime, however, was the same at trial as his original relation of the incident, and it did not change under cross examination. See Harris v. State, 261 P.2d 909, 916 (Okla.Crim.App. 1953). We cannot say that the child’s testimony was so “inherently improbable,” People v. Lamb, 264 P.2d 126, 130 (Cal.App. 1953), as to establish the witness’ incompetency as a matter of law. Nor has appellant shown that the testimony was “coached or rehearsed,” Jordan v. People, 419 P.2d 656, 661 (Colo. 1966), cert. denied, 386 U.S. 992 (1967), to a degree sufficient to justify overturning a trial court’s finding of competency. Therefore, the judgment of the district court is affirmed.

Thompson, Gunderson, and Batjer, JJ., concur.

1 An expert witness testified that penetration of a twenty-three month old girl would be “almost impossible” without obvious damage to the child, and there was no evidence that any such damage had been observed.