State v. Ward
455 S.E.2d 666
N.C. Ct. App.
1995
Check Treatment
EAGLES, Judge.

I.

Defendant first argues that the trial court erred in finding that the victim was competent to testify and in allowing her to testify. The victim was four years old when she testified and the alleged offenses occurred when she was two years of age. Defendant argues that because of the victim’s age and because of her inconsistent answers as to whether she knew what it meant to tell the truth, she was not competent to testify. G.S. 8C-1, Rule 601(b) provides:

(b) Disqualification of witness in general. — A person is disqualified to testify as a witness when the court determines that he is *394 (1) incapable of expressing himself concerning the matter as to be understood, either directly or through interpretation by one who can understand him, or (2) incapable of understanding the duty of a witness to tell the truth.

“There is no age below which one is incompetent, as a matter of law, to testify.” State v. Jenkins, 83 N.C. App. 616, 621, 351 S.E.2d 299, 302 (1986), cert. denied, 319 N.C. 675, 356 S.E.2d 791 (1987). Determining whether a child is competent to testily is a matter within the sound discretion of the trial court. Id. The trial court’s decision will not be reversed on appeal unless it is shown that it could not have been the result of a reasoned decision. State v. Spaugh, 321 N.C. 550, 554, 364 S.E.2d 368, 371 (1988), citing State v. Hicks, 319 N.C. 84, 89, 352 S.E.2d 424, 426 (1987). In exercising his discretion, the trial court “must rely on his personal observation of the child’s demeanor and responses to inquiry on voir dire examination.” State v. Fearing, 315 N.C. 167, 174, 337 S.E.2d 551, 555 (1985).

In Jenkins, we held that the trial court did not err in finding that a four year old witness was competent to testify even though the witness gave contradictory answers on voir dire as to whether she knew the difference between the truth and a lie. Jenkins at 621-22, 351 S.E.2d at 302-303. There we stated that “the vast majority of cases in which a child witness’ competency has been addressed have resulted in the finding, pursuant to an informal voir dire examination of the child before the trial judge, that the child was competent to testify.” Jenkins at 621, 351 S.E.2d at 302-03. We pointed to State v. McNeely, 314 N.C. 451, 454-57, 333 S.E.2d 738, 741-42 (1985), where our Supreme Court upheld the trial court’s finding of competency even though the child witness responded that she did not know what it meant to tell the truth. Jenkins at 621-22, 351 S.E.2d at 303. We also referred to State v. Jones, 310 N.C. 716, 722, 314 S.E.2d 529, 533 (1984), where our Supreme Court “cited as evidence of competency that the child knew that if she did not tell the truth she would get a spanking.” Jenkins at 622, 351 S.E.2d at 303.

Here, relevant portions of the conversation between counsel for the State and the victim were:

Q. Crystal, do you know what it means to tell the truth?
A. (Witness nods head affirmatively.)
Q. You do? What happens to you at home if you don’t tell the truth?
*395 A. A whipping.
Q. And does that hurt when you get a whipping?
A. Yes.
Q. Once you get a whipping, what do you know you’re supposed to do after that? Do you know?
A. (Witness shakes head negatively.)
Q. But you know you get a whipping when you tell a story. Is that right?
A. Yes.
Q. Do you know what it means to tell a story?
A. No.
Q. You don’t? Do you know what it means to tell the truth?
A. No.
Q. You don’t know what it means to tell the truth? If I said that I had on a blue shirt, would I be telling the truth?
A. (Witness shakes head negatively.)
Q. I would not? What color is my shirt?
A. Blue.
Q. So if I had a blue shirt, then I would be telling the truth, wouldn’t I?
A. (No response.)
Q. Do you go to church or Sunday School?
A. I go to church.
Q. You learned about Jesus in the manger at church. Is that right?
A. Yes.
Q. Would Jesus want you to tell the truth?
*396 A. Yes.
Q. Would Jesus tell you to tell a story?
A. (Witness shakes head negatively.)
Q. And if the judge asks you to tell the truth today, will you tell the truth?
A. Yes.
Q. Can you answer yes or no? If the judge wants yo.u to tell the truth today, can you tell the truth?
A. No.
Q. You won’t? Do you mean that you would tell the judge a story today?
A. No.
Q. Will you tell the truth today about what happened to you?
A. (Witness nods head affirmatively.)

Relevant portions of the court’s conversation with the victim were:

The Court: Now do you go to church?
The Witness: Yes.
The Court: You indicated or you said that you knew you were supposed to tell the truth and what happens if you don’t tell the truth?
The Witness: I get a whipping.
The Court: If I said your name was Mary, would I be telling the truth?
The Witness: No. My name is Crystal.
The Court: If I said your name was Crystal, would I be telling the truth?
*397 The Witness: Yes.
The Court: If I said the lady over on the end over here was Mrs. Wilson, would I be telling the truth?
The Witness: No.
The Court: If I said her name was Mrs. Sims, would I be telling the truth?
The Witness: Yes.

Based on this testimony and our prior cases, we hold that the trial court did not abuse its discretion in finding the victim competent to testify and allowing her to testify. Any contradictions in her testimony went to her credibility, rather than her competency to testify. State v. Cooke, 278 N.C. 288, 291, 179 S.E.2d 365, 368 (1971).

II.

Defendant next argues that the trial court erred in admitting hearsay testimony of Dr. Santos, Ms. Stewart, Ms. Shephard, and Detective Sims. These four witnesses testified about statements that the victim made to them which identified defendant as the person who sexually abused the victim. “To introduce hearsay evidence in a criminal trial, the prosecution must meet two requirements: (1) it must show the necessity for using hearsay testimony, and (2) it must establish the inherent trustworthiness of the original declaration.” State v. Jones, 89 N.C. App. 584, 589, 367 S.E.2d 139, 143 (1988). In Jones, we found that the necessity requirement was satisfied because the victim was found incompetent to testify and thus was unavailable. Jones at 589-90, 367 S.E.2d at 143. In reaching that conclusion, we stated that “ ‘[t]he unavailability of the victim due to incompetency and the evidentiary importance of the victim’s statements adequately demonstrate[d] the necessity’ requirement of the two-part hearsay test.” Jones at 590, 367 S.E.2d at 143, quoting State v. Gregory, 78 N.C. App. 565, 568, 338 S.E.2d 110, 112-13 (1985), review denied, 316 N.C. 382, 342 S.E.2d 901 (1986). Because the victim here was available and did testify, defendant argues that the necessity requirement was not met. We disagree.

Once the infant victim here was declared competent to testify, she briefly answered a few questions asked by the State’s counsel and then was cross examined by defendant’s counsel. She never testified *398 about anything dealing with the charges in the case. A review of the transcript of her limited testimony shows clearly that the victim was neither cooperative nor responsive. Because the victim’s testimony was so limited and because of her uncooperativeness, we hold that the victim was in fact “unavailable” for purposes of testifying at trial. Combining her de facto unavailability with the evidentiary importance of her statements, we hold that the hearsay testimony of the witnesses was “necessary”' under the two-part hearsay test.

The second requirement of the two-part hearsay test requires the prosecution to establish the inherent trustworthiness of the original declaration. Defendant’s brief does not dispute that the State established the inherent trustworthiness of the original declaration. Accordingly, we need not address the second requirement and hold that the trial court did not err in admitting the hearsay testimony of Dr. Santos, Ms. Stewart, Ms. Shephard, and Detective Sims.

III.

Defendant next argues that the trial court erred in refusing to instruct the jury on attempted first degree sexual offense and attempted first degree rape. Dr. Santos testified that the victim had shown her on anatomical dolls how defendant touched her rectum with his finger. Ms. Stewart testified that the victim told her that defendant “hurted [sic] [her] tail, too.” Based on this testimony, defendant, at the charge conference, moved that an instruction on attempted first degree sexual offense be given. Defendant also requested an instruction on attempted first degree rape based on Dr. Sinai’s testimony that she found a tear in the victim’s anal area that “was consistent with attempted penetration or penetration.”

“A trial court must submit a lesser included offense instruction if the evidence would permit a jury rationally to find defendant guilty of the lesser offense and acquit him of the greater.” State v. Johnson, 317 N.C. 417, 436, 347 S.E.2d 7, 18 (1986), citing State v. Strickland, 307 N.C. 274, 286, 298 S.E.2d 645, 654 (1983). However, when the State seeks a conviction only on the greater offense and tries the case on an “all or nothing basis,” the trial court needs to present an instruction on the lesser offense only when the “defendant presents evidence thereof or when the State’s evidence is conflicting.” State v. Bullard, 97 N.C. App. 496, 498, 389 S.E.2d 123, 124, review denied, 327 N.C. 142, 394 S.E.2d 181 (1990).

*399 Here, the State proceeded on an “all or nothing basis.” The defendant presented no evidence tending to show attempted first degree sexual offense or attempted rape. Instead, defendant only presented evidence to establish the defense that he was not with the victim on the weekend when she was allegedly abused and that the victim’s mother actually abused her. Accordingly, defendant was entitled to an instruction on the lesser included offenses only if the State’s evidence was contradicted. Defendant argues that the testimony by the State’s witnesses, Dr. Santos, Ms. Stewart, and Dr. Sinai, created conflicts in the State’s evidence. We disagree.

In State v. Johnson, 317 N.C. 417, 347 S.E.2d 7 (1986), our Supreme Court held that evidence was conflicting because on direct examination, the victim testified that “she complied with the assailant’s instructions to put his penis into her vagina,” but on cross examination, the victim testified that she had told the police that the assailant tried to penetrate her but could not. Johnson at 436, 347 S.E.2d at 18. Our Supreme Court concluded that this testimony created a conflict in the evidence as to whether penetration occurred. Id.

The testimony elicited by defendant created no conflict in the evidence. The State presented evidence that defendant vaginally and anally penetrated the victim. The victim told her mother, Dr. Santos, Ms. Stewart, Ms. Shephard and Detective Sims that defendant “put his bone in her cootie-coo” and hurt her. The victim also demonstrated to Dr. Santos, Ms. Stewart, and Ms. Shephard on anatomical dolls where defendant had touched and penetrated her and showed Ms. Stewart that defendant had also “put his bone” in her anal opening. While defendant contends the testimony by Ms. Stewart, Dr. Santos, and Dr. Sinai created a conflict, their testimony merely showed that defendant touched the victim in addition to committing acts sufficient to convict for first degree sexual offense and first degree rape. Accordingly, we conclude that the trial court did not err in refusing to instruct the jury on attempted first degree rape and attempted first degree sexual offense.

IV.

Defendant finally argues that the trial court erred by signing and entering the judgment finding him guilty. From our review of the record and based on our conclusions above, we hold that the trial court did not err in signing and entering the judgment.

*400 No error.

Judges WALKER and McGEE concur.