specially concurring.
The majority concludes that the trial judge need not initiate the examination of a child under ten years in order to determine whether the child is capable of testifying. I do not agree but concur in the result. Udall and Livermore are right, the statute places a burden on the judge to sua sponte examine all witnesses under the age of ten to find out if they are capable of being witnesses. Apparently the majority believes that under A.R.S. § 12-2202 the judge need only look at the child and decide whether such child “appears” incapable of receiving just impressions, etc. I guess *558that those children with narrow set eyes and weak chins would obviously be “incapable” and those with dancing eyes and an apparent good disposition would be “capable.” It seems to me that the only way the judge can tell if the child is capable is to ask him or her some preliminary questions and that is what I believe the statute requires. Contrary to the conclusion reached by the majority, the Arizona cases also stand for this proposition. Nevertheless, I would affirm here because any error was waived by failing to object to the testimony and by the fact that the testimony of the children shows they were competent witnesses under the statute. The failure to sua sponte examine the children for competency was not fundamental error.