GERALD DEWAYNE WILSON, APPELLANT, v. THE STATE OF NEVADA, RESPONDENT.
No. 10918
SUPREME COURT OF NEVADA
April 30, 1980
610 P.2d 184
Richard H. Bryan, Attorney General, Carson City; and Robert J. Miller, District Attorney, Clark County, for Respondent.
By the Court, MOWBRAY, C. J.:
Gerald Dewayne Wilson appeals from his conviction of attempted sexual assault on a minоr under the age of fourteen years,
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 imprеssions 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
THOMPSON, GUNDERSON, and BATJER, JJ., concur.
MANOUKIAN, J., dissenting:
I respectfully dissent. In my view, the trial сourt abused its discretion in finding that a child witness was competent to testify. As a result, appellant was convicted of attempted sexual assault of a child under the age of fourteen,
Marc, seven years of age at the time of the alleged crime, was the chief witness for the state. He testified that on the morning of August 6, 1977, appellant Wilson knocked on the door of the apartment in which Marc was alone with his twenty-three month old sister, Lolita. Marc opened the door bеcause the knock sounded like that of his mother who was at work. Wilson entered the apartment and pushed Marc over. Appellant then “was searching through house” and then brought Lolita into the bedroom from the living room where she had beеn watching television and sexually assaulted her. According to Marc, Wilson “took his ding-a-ling and stuck it in her, and she started crying....” On cross-examination Marc would say yes when asked if Lolita had yelled and screamed. Marc then got a knife from the kitchen аnd told Wilson to get off of his sister.
Other evidence shows that when Marc‘s mother returned home, she noticed nothing unusual. She said Lolita appeared “irritable” but that that was normal. On August 8, two days after the alleged assault, a neighbor asked Marc‘s mother if her daughter had been raped. Apparently, Marc had mentioned the incident to the neighbor‘s daughter and thirteen-year-old son who had told their mother. Marc‘s mother then summoned the police and took Lolita to the hospital, where the examination revealed a slight redness around Lolita‘s vaginal area.
The state called a nurse who was present at the examination. The nurse testified that the conclusion of the examining physician was that there was no tenderness, no swelling and no sexual penetration. The hymen was not torn or broken. The redness, or an irritation termed “erythema,” was located in the area between the outside labia and insidе labia. A medical expert, called by the defense testified that it would be “almost anatomically impossible” for a sexual assault to be perpetrated on a two year old in any situation and, if it was accomplished, it would not be done without significant damage. The record contains other explanations for the redness which are inconsistent with criminality and, in fact, characteristic of infancy.
A police officer testified that he assisted in the conduct of a photographic lineup approximately one month after the incident. At that time Marc was shown seven color photographs of black males in their early twenties. Marc “quickly picked out” appellant‘s photograph. The officer acknowledged that Marc did not say that appellant was the one who assaulted Marc‘s sister, although he “seemed to be pretty much aware of why he was there....” On cross-examination, the officer also admitted that аppellant stood out in the photos as a man of smaller stature.
Appellant presented an alibi stating that he had been out late the night before and slept late that morning in a friend‘s apartment. This was partially corroborated by the friend who said that they were out until 2 a.m. and that she slept until noon but could not be certain that appellant had. Although she had no specific recollection as to what time appellant woke up, she did testify that they commonly slеpt late.
It is true that a finding of competence by a trial court will not
Marc‘s testimony was inconsistent in several respects. His ability to recall circumstances surrounding the alleged assault was concededly flawed. At the initial hеaring, and in response to a question by the court, Marc thought that he had been attending school at the time of the incident. Later, in the presence of the jury, Marc stated that he was living with his mother in Las Vegas on Saturday, the day of the incident. In fact, Marc attended school from September to June while living with his father in Illinois.
On direct examination, Marc stated that his sister “started crying” when appellant assaulted her. On cross-examination, Marc said yes when asked if Lolita yelled and screamed. Marc testified on voir dire that he had not spoken to any policeman about the incident. Before the jury he said that he had talked to a policeman and, on cross-examination, he admitted that he simply had not remembered talking to a policeman. Marc also said he knew what the word “screw” meant although at the preliminary hearing he had stated he did not know what it meant. More importantly, Marc testified that he had been unable to remember parts оf his testimony before discussing it with the district attorney prior to the trial and that the district attorney had had to describe what Marc purportedly saw to get him to answer questions.
Marc‘s testimony demonstrated additional problems. Marc consistently stated that he had told his mother about the incident on the Monday nine days after the Saturday occurrence. In fact, Marc had told his mother the Monday two days after the incident. Marc did identify appellant as having been in the apartment complex. But when asked by the court, “Did you see that person do anything unusual at the Moulin Rouge [apartments]?“, Marc answered, “Could you describe that to me?” I also note that while Marc selected appellant‘s picture from the photographic lineup, it appears that appellant was the only person Marc knew.
All of these factors combine to indicate an inability on Marc‘s part to distinguish between what was true and what was not true. Marc was also confused about the distinction between not knowing or remembering something and telling a lie about it. When Marc first said that something did not happen (such as
We have held, under the former statutory standard of competency,
Other factors contained in the record cast serious doubt, not only upon Marc‘s credibility, but on his ability to recollect and relate truthfully what he observed. See Shuff v. State, 86 Nev. at 738, 476 P.2d at 23-24. Marc testified that he brandished a knife at appellant but was sufficiently threatened that he could not tell his mother; Marc did, however, tell his friends. The mother noticed nothing at all wrong with her daughter and the subsequent examination revealed only a slight redness. The medical testimony indicatеd an anatomical impossibility that the assault had occurred as Marc portrayed it. And, although his sister cried or screamed (it is uncertain just what she did), Marc said she went to sleep after the incident. It is unlikely that no one in the apartment cоmplex would hear the child screaming while she was being assaulted. Under these circumstances, where there is no evidence other than the testimony of a seven-year-old child that a crime was committed, and the testimony is not only inconsistent but “inherently improbable” as well, I perceive no alternative but to conclude that the trial court abused its discretion in finding the child witness competent.
Moreover, even without the witness competency question, on this record the evidence which supports the verdict of the jury was, in my view, so insufficient as to preclude rational triers of fact from rendering a guilty verdict on any offense. Jackson v. Virginia, 99 S.Ct. 2781 (1979). If juries within our