In this аppeal from his conviction for child molestation, the appellant contends that the trial court erred in finding the 5-year-old victim competent to testify, in admitting evidence of his previous convictions for rape and solicitation of sodomy, in admitting evidence of the contents of a hospital emergency room report which had not been disclosed by the state pursuant to Codе Ann. § 27-1303, and in failing to grant his request to charge on public indecency as a lesser included offense.
This сase was tried twice, with the first trial resulting in a mistrial due to the jury’s inability to reach a verdict. Although the transcriрt of the first trial is not before us, it appears without dispute from an affidavit submitted by the court reporter that the victim was declared incompetent to testify at that time and that the two prior conviсtions were not offered as evidence. At the second trial, both the victim and her 8-year-old brother testified that the appellant pressed his exposed penis against the victim’s body during an encоunter on the shore of a lake where the two children were playing. The appellant was arrested near the scene shortly thereafter, based on a description provided to police by the brother. These events took place in September of 1981. The conduct which gave rise to the prior rape and solicitation of sodomy convictions took place in January of 1977 and August of 1980, respectively. Held:
1. “The statutory test, Code § 38-1607, of the competency of a child to testify as a witness in a court of justice is that he understand the nature of an oath . . . Moore v. State,
The victim testified as follows concerning her understanding of the meaning of an oath:
“Q. Do you know what an oath is?
“A. Yes.
*875 “Q. Tell the judge what an oath is.
“A. When you promise God to tell the truth.
“Q. Do you know what telling a lie is? What is a lie?
“A. A lie is when you tell a story.
“Q. Is the truth a story?
“A. No.
“Q. Is the truth good or bad?
“A. Good.
“Q. Is a lie good or bad?
“A. Bad.
“Q. What happens if you tell your mama a story?
“A. You get a spanking.
“Q. Do you know what happens if you tell a lie in court, when you swear to God to tell the truth? What happens?
“A. You go to jail.”
This testimony was sufficiеnt to authorize the trial court to conclude that the witness was competent to testfiy. Accord Thurmond v. State,
2. “Evidence of other similar crimes by a defendant is admissible if there is ‘sufficient similarity or connеction between the independent crime and the offense charged, that proof of the fоrmer tends to prove the latter. [Cits.] ’ French v. State,
Although there is no indication that either of the prior sexual offenses at issue in thе case before us now involved children, they were nevertheless admissible to establish the appellant’s lustful disposition. The appellant did not deny that he had touched the
3. Any error in allowing the examining physician to testify with reference to the emergency room report was obviated by the fact that the witness had given the samе testimony at the previous trial, a fact established by the inclusion in the record of a transcription of his previous testimony. Since the appellant was already well aware of the testimony thе physician would offer, he could not have been harmed by the state’s failure to disclose the substаnce of the medical report pursuant to either Code Ann. § 27-1303 or Brady v. Maryland,
4. The court did not err in refusing the appellant’s request to charge on public indecency (Code Ann. § 26-2011), as there was no evidence from which the jury could reasonably have concluded that he had committed an aсt of public indecency but had stopped short of committing child molestation. See generally Mafnas v. State,
Judgment affirmed.