Price v. StatePrice v. State
ON APPLICATION FOR REHEARING
The opinion previously issued in this case is hereby withdrawn and the following corrected opinion substituted therefor.
Appellant Raymond Price was convicted of child abuse, a violation of
The appellant contеnds that the victim, a four-year-old child, should not have been allowed to testify without the court’s first establishing that she was competent. Specifically, he argues that the state should not have been allowed to proceed under the sexual abuse statute,
Section 12-21-165, Code of Alabama 1975, provides: “Persons who have not the use of reason, such as idiots, lunatics during lunacy and children who do not understand the nature of an oath, are incompetеnt witnesses.” An exception was carved out concerning children, by the adoption in 1985 of
As Judge Patterson stated in Brasher v. State,
*382 “Where construction of a statute is necеssary, the subject matter of the statute will control, to some extent, in determining whether a strict or liberal interprеtation shall be adopted. 82 C.J.S. Statutes at § 387 (1953). As a general rule, penal statutes are strictly construed. Spurlock v. State,37 Ala.App. 390 ,69 So.2d 293 (1953); 82 C.J.S. Statutes at § 389. Procedural statutes, on the other hand, should be liberally construed with a view to the effective administration of justice and to effectuate their purpose. Here, since we are dealing with a procedural statute, we should apply the rule of liberal construction, if necessary; however, this does not justify construing the language of the statute to mean something different from its clear and obvious meaning.’’
In Limestone County Dept. of Human Resources v. McAllister,
“It was clearly intended to apply to every proceeding involving an allegation of sexual abuse or sexual exploitation, whether the proceeding is civil or criminal. Where the languagе of a statute is plain and unambiguous, and where the validity of the statute is not otherwise under attack, there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.”
McAllister,
Sincе the terms “sexual abuse” and “sexual exploitation” are not vague and could not be construed to mean anything other than their plain meaning, we must adhere to the wording of the statute. The legislative intent may have been to protect all children who had been abused, however, the statute clearly states that the application of the statute is to “child victims of sexual abuse or sexual exploitation.”
There is no age at which competency is presumed. A four-year-old can testify in cases other than sexual abuse or sexual exploitation if he or she has first been determined to be competent. In the instant case, the trial court аttempted to question the victim but could not get her to talk. As a result, the trial court recessed until the next morning to see if the child would then be able to testify. The trial court again attempted to question the victim, with no success. The trial judge then allowed the victim to testify, relying on § 15-25-3(c). This was error. A review of the transcript of the child's testimony crеates grave doubts as to her competency to testify-
Furthermore, we cannot say that the introduction оf her testimony was harmless. After we subtract the child’s testimony, there remains testimony which was received into evidenсe upon reliance on other statutes connected with § 15-25-3(c).
We find support for our holding in the case of Wilburn v. State,
The statе argues that the statute should apply to physical abuse cases as well as to sexual abuse casеs. It cites Hewlett, supra, in support of its position. In Hewlett, the defendant was charged with child abuse, assault in the second degree, and rape in the first degreе. The victim was a 14-year-old girl. She was allowed to testify under § 15-25-3(c). As stated above, in Hewlett, the appellant was chаrged with an offense involving sexual abuse, thus application of the statute was clearly correct. Furthermоre, the issue in Hewlett had not been preserved since no objection was made. The case also states that the victim had been questioned by the assistant dis
We find little support for the state’s argument here. The statute states thаt victims of sexual abuse or sexual exploitation shall be allowed to testify without first having been established to be competent. See
ORIGINAL OPINION WITHDRAWN; CORRECTED OPINION SUBSTITUTED; REVERSED AND REMANDED; RULE 39(k) MOTION DENIED; APPLICATION FOR REHEARING OVERRULED.