Appeal from the District Court of Lincoln County The Honorable Dennis L. Sanderson, Judge
The opinion of the court was delivered by: Hill, Justice.
Before KITE, C.J., HILL, VOIGT, BURKE, and DAVIS, JJ.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent volume.
[¶1] Donald Hutchinson was convicted of one count of sexual abuse of a minor in the second degree. On appeal, he contends that the victim was incompetent to testify and that the district court improperly denied his Motion for Judgment of Acquittal. We will affirm.
[¶2] Hutchinson presents two issues:
1. Because the competency of the child witness was not properly examined and she was not competent to testify, it was clearly erroneous to allow her testimony and Hutchinson's conviction must be reversed.
2. Because there was no evidence beyond a reasonable doubt that Hutchinson had "sexual contact" with the victim, it was an abuse of discretion to deny the Motion for Judgment of Acquittal and Hutchinson's conviction must be reversed.
[¶3] In October of 2010, Donald Hutchinson was charged with one count of sexual abuse of a minor in the second degree. The charges against Hutchinson alleged that he inappropriately touched a six-year-old girl's vagina for sexual gratification while bathing her. Hutchinson was the victim's step-grandfather at the time. The victim (HAL) reported the incident to her 14-year-old brother (TL), who then told their grandmother, who reported the information to authorities of the allegations, and an investigation followed. Eventually, the case was tried to a jury on November 7-8, 2011, and Hutchinson was found guilty. He was sentenced to two to eight years at the State penitentiary, and this appeal followed. More facts will be cited hereinafter.
I. Competency of Child Witness
[¶4] The day trial was set to begin, and after seating the jury, the district court addressed the competency of the victim, who was eight years old at the time of trial. The hearing was held outside the jury's presence, and lasted a total of twenty-six minutes. Neither the prosecution nor defense asked questions. Instead, the court conducted the questioning of the child. The court stated at the end of the colloquy that "the information gathered here today [was] [in]sufficient to overcome the presumption that she is competent, so I'm going to allow her to testify." On appeal, Hutchinson argues that the victim was not properly examined for competency and was not competent to testify.
Hutchinson takes issue with the competency hearing not being conducted until the first day of trial, even though he had filed a competency motion months before. Also, Hutchinson contends that the court's examination of the child was insufficient, and that the child herself showed she did not know what it meant to tell the truth, nor did she have the capacity to testify, to express her memory of the event or to understand questions about the event.
[¶5] In response, the State argues that the court conducted a meaningful competency hearing, regardless of when it was held or how long it took, and that the child satisfied this Court's five-part test for competency, which we will discuss below. First, however, we review how this Court analyzes a district court's findings regarding the competency of a child to testify:
It is a well-established principle of law that competency of witnesses to testify is a question within the sound discretion of the trial court. However, when children are called into the courtroom to testify, we have held that once the child's competency is called into question by either party, it is the duty of the court to make an independent examination of the child to determine competency, and that determination will not be disturbed unless shown to be clearly erroneous.
English v. State, 982 P.2d 139, 145 (Wyo. 1999) (internal citations and emphasis omitted). We must give a considerable amount of deference to the trial court because it "is in a far better position to judge the demeanor, truth, and veracity of the witness[.]" Gruwell v. State, 2011 WY 67, ¶ 25, 254 P.3d 223, 231 (Wyo. 2011). Therefore, "[w]e do not presume to place ourselves in the shoes of the trial court in these cases by reading a cold record. The trial court sees the witness' facial expressions, hears inflections in [his] voice and watches [his] mannerisms during examination. These observations are a vital part of the ultimate ruling on competency."
Id. (quoting Seward v. State, 2003 WY 116, ¶ 32, 76 P.3d 805, 819 (Wyo. 2003)).
Mersereau v. State, 2012 WY 125, ¶ 5, 286 P.3d 97, 103-04 (Wyo. 2012). Also speaking to witness competency, Rule 601 of the Wyoming Rules of Evidence presumes that "[e]very person is competent to be a witness except as otherwise provided in these rules." This Court has further said that "A person is generally competent to testify if he can understand, receive, remember and narrate impressions and is sensible to the obligations of the oath taken before testifying." Simmers v. State, 943 P.2d 1189, 1199 (Wyo. 1997). Further, a witness' ...