State v. Howard

No. 90-305

IN THE SUPREME COURT OF THE STATE OF MONTANA
1991

STATE OF MONTANA,
Plaintiff and Respondent,
-v-
ROBERT E. HOWARD,
Defendant and Appellant.

APPEAL FROM: District Court of the Seventh Judicial District,
In and for the County of Richland,
The Honorable Dale Cox, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
J. Douglas Alexander, Sidney, Montana
For Respondent:
Marc Racicot, Attorney General; Joe Thaggard, Asst.
Atty. General; Helena, Montana
Mike Weber, Richland County Attorney; Phillip N.
Carter, Deputy County Attorney; Sidney, Montana

Submitted on Briefs: January 17, 1991
Decided: March 4, 1991
Filed:

Clerk
Justice Fred J. Weber delivered the Opinion of the Court.

In the District Court for the Seventh ~udicial District,
Richland County, defendant Robert Howard, was convicted of two
counts of felony sexual assault pursuant to 9 45-5-502(3), MCA.
Defendant appeals. We affirm.
The sole issue for our consideration is: id the District
Court err in finding the two child witnesses competent to testify
under Rule 601, M.R.Evid.?
Mrs. M 1 s twin five-year-old daughters, C.B. and K.B., lived
with Mrs. M and her husband. ~ccasionally,the M's had defendant's
wife, Teresa, babysit the twins.
In May 1989, C.B. and K.B. told Mr. M that defendant had
''licked their butts1' and showed them his "big thing1'. Mr. M
informed David Schettine, a Police Detective, about what the girls
had said. Mr. Schettine then interviewed each girl separately.
Both girls said that defendant "licked their buttn in the presence
of the other twin. They both indicated by pointing that what they
really meant by were their vaginas. The girls testified
that the assaults took place at Teresa's home while she was
babysitting. Each girl testified that Teresa was not at home when
the assaults took place.
Did the District Court err in finding the two child witnesses
competent to testify under Rule 601, M.R.Evid.?
Defendant maintains the District Court erred in allowing the
testimony of C.B. and K.B. because the girls were not competent to
testify. He contends that the girls were "incapable" of telling
the truth and are therefore incompetent under Rule 601(b),
M.R.Evid.
The State maintains that both girls were proven to be
competent prior to testifying. The State points out that after the
voir dire of C.B., and upon the State's motion, the court found
C.B. competent to testify. Defendant failed to object to C.B. Is
competence or to voir dire her at this point. C. B. then testified.
Only after the State's redirect examination of C.B. did defendant
move the court to reconsider C.B.'s competency to testify. The
court denied that motion.
Similarly, before K.B. was declared a competent witness, the
court invited the defense to voir dire K.B. The defense responded
with, I1I think I'd prefer to just cross-examine once." The court
then found K.B. competent to testify. After the re-direct
examination of K.B., the defense moved the court to reconsider its
finding of K.B.'s competence. The motion was denied.
The State further contends that both girls were 'lcapablell
of
testifying under Rule 601(b), M.R.Evid. It urges that in
determining whether the District Court abused its discretion it
must be determined that K.B. and C.B. possessed sufficient capacity
of expression and appreciation of the duty to tell the truth to
qualify them as competentwitnesses. The State contends both girls
were able to vividly recall the assault and relate significant
details of what happened.
 Rule 601 (b) provides:
Disqualification of witnesses. A person is disqualified
to be a witness if the court finds that (1) the witness
is incapable of expressing himself concerning the matter
so as to be understood by the judge and jury either
directly or through interpretation by one who can
understand him or (2) the witness is incapable of
understanding the duty of a witness to tell the truth.
During the settling of instructions, the District Court
addressed the pending motions by the defense to reconsider the
qualifications of the two girls as to their competency. The court
stated:
The Court has reviewed a number of Supreme Court
cases, State vs. Rogers, State vs. DBS, State vs. Phelps,
State vs. Elier, and others.
The Court has also reviewed the testimony and notes
that the criteria is set forth in Rule 601 of the Montana
Rules of Evidence. And for disqualification of a
witness, the person must be -- the witness must be
incapable of expressing herself concerning the matter so
as to be understood by the judge and jury, directly or
through interpretation by one who can understand him.
I found both girls were capable of expressing themselves.
And the second, a witness is incapable of
understanding the duty of the witness to tell the truth.
And the State did lay a foundation as to both girls
showing that they knew it to be wrong to lie.
The cross-examination brought out certain
inconsistencies of each witness. Based upon my reading
of the Supreme Court cases and my understanding of the
Rules of Evidence, those inconsistencies are for the jury
to take into consideration in determiningthe credibility
of each witness.
Therefore, the motion for reconsideration is denied.
A determination of competency is within the sound discretion
of the District Court. State v. Newrnan (1990), 242 Mont. 315, 790
P.2d 971. Defendant has failed to demonstrate the District Court
has abused that discretion.
We hold that the District Court correctly found the two child
witnesses competent to testify under Rule 601, M.R.Evid.
Affirmed.

" Chief Justice