Opinion
No. 89-710.
Filed February 23, 1990.
1. Trial: Minors: Witnesses: Appeal and Error. The question of competency of a child witness lies within the discretion of the trial court, and that determination will not be disturbed in the absence of an abuse of discretion. 2. Trial: Minors: Witnesses: Presumptions. There is no age below which a child is presumed to be incompetent to testify. 3. Trial: Minors: Witnesses. In ruling whether a child is a competent witness, the trial court must determine whether a child is sufficiently mature to receive correct impressions by his or her senses, whether the child can recollect and narrate intelligently, and whether the child can appreciate the moral duty to tell the truth.
Appeal from the Separate Juvenile Court of Sarpy County: WILLIAM D. STALEY, Judge. Affirmed.
Robert C. Wester, Assistant Sarpy County Public Defender, for appellant.
Patrick Kelley, Sarpy County Attorney, and Mary Margaret Zerse Stevens for appellee.
HASTINGS, C.J., BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.
Claiming that the victim was incompetent to testify against him, M.L.S., a 14-year-old male, appeals an adjudication that he was subject to a juvenile court's jurisdiction because he had committed a third degree sexual assault on a 4-year-old girl.
We affirm the Sarpy County Separate Juvenile Court's adjudication finding M.L.S. to be a child within Neb. Rev. Stat. § 43-247(1) (Reissue 1988), a juvenile who has committed an act other than a traffic offense which would constitute a misdemeanor, and 43-247(3)(b), a juvenile who deports himself so as to injure or endanger seriously the morals or health of himself or others. Sexual assault in the third degree is a Class I misdemeanor when the crime is committed without serious personal injury to the victim. Neb. Rev. Stat. § 28-320(1) and (3) (Reissue 1989).
In laying the foundation to demonstrate the victim's competency to testify, the State questioned the witness in regard to her full name, age, date of birth, address and city of residence, her father's name, her knowledge of truth versus falsehood, and the consequences of telling a lie. The victim recalled both her and her father's first names, but not their last name. She recalled her age and date of birth, but she was unable to recite her address or the name of the city in which she lived. The witness testified as to the difference between truth and falsehood and the consequences of lying. The victim could not identify the accused by a nickname, but did identify him by his given name.
M.L.S. moved to dismiss the victim witness as incompetent and objected to any further testimony by her. M.L.S. asserted, "I just don't think the competency's been shown — of a four-year-old to testify and know the truth and know the difference between truth and nontruth and that she's able to affirm or swear to tell the truth . . . ." Over a continuing objection, the juvenile court permitted the 4-year-old victim to recount the sexual assault upon her by M.L.S.
Upon completion of the trial, the juvenile court concluded the State had proven beyond a reasonable doubt that M.L.S. had subjected another person to sexual contact and knew or should have known that the victim was physically or mentally incapable of resisting or appraising the nature of his conduct, in violation of 28-320(1)(b) and (3). M.L.S. was placed in the custody of the Department of Social Services.
M.L.S. contends that the juvenile court (1) erred as a matter of law by allowing an incompetent witness to testify and (2) abused its discretion by allowing an incompetent witness to testify.
The question of competency of a child witness lies within the discretion of the trial court, and that determination will not be disturbed in the absence of an abuse of discretion. State v. Guy, 227 Neb. 610, 419 N.W.2d 152 (1988); State v. Miner, 216 Neb. 309, 343 N.W.2d 899 (1984). There is no age below which a child is presumed to be incompetent to testify. In ruling whether a child is a competent witness, the trial court must determine whether a child is sufficiently mature to receive correct impressions by his or her senses, whether the child can recollect and narrate intelligently, and whether the child can appreciate the moral duty to tell the truth. See State v. Guy, supra.
M.L.S. specifically complains that the witness was incompetent to testify in that she "could not recollect and intelligently narrate even the most basic data, such as; her name; her address; the name of the city in which she lived; the name of the perpetrator; or the fact that the perpetrator was living with her family." Brief for appellant at 5.
The witness recalled her first name, as well as the first name of her father. She identified M.L.S. by his given name, and she did testify that M.L.S. lived with her family. As already noted, the witness differentiated between truth and falsehood and the consequences of lying. She promised to tell the truth. In addition, the victim had no difficulty in narrating in vivid, lucid, and substantial detail the unfortunate events involving the sexual assault on her by M.L.S. Since M.L.S. only assigns as error the victim's competency to testify, there is no need for further discussion of the lurid details of the sexual assault. We cannot say that the juvenile court abused its discretion in allowing the 4-year-old victim to testify.
AFFIRMED.