from the District Court of Campbell County The Honorable
Michael N. Deegan, Judge
Representing Appellant: Office of the Public Defender: Diane
Lozano, State Public Defender; Tina N. Olson [*] , Chief Appellate
Counsel; David E. Westling, Senior Assistant Appellate
Counsel. Argument by Mr. Westling.
Representing Appellee: Peter K. Michael, Wyoming Attorney
General; Christyne M. Martens, Deputy Attorney General;
Benjamin Fischer, Assistant Attorney General; Darrell D.
Jackson, Faculty Director, Prosecution Assistance Program;
Saige N. Smith, Student Director, Prosecution Assistance
Program; Alexander J. Wolfe, Student Intern. Argument by Mr.
BURKE, C.J., and HILL [†] , DAVIS, FOX, and
A jury found Darrell Wayne Young guilty of two counts of
first degree sexual abuse of a minor and three counts of
second degree sexual abuse of a minor. The district court
ordered him to serve five consecutive sentences of life in
prison without the possibility of parole because he had
previously been convicted of a similar offense. On appeal,
Mr. Young asserts the district court erred by determining the
minor victim, FH, was competent to testify.
Mr. Young presents a single issue on appeal, which we
rephrase: Did the district court err in finding FH competent
to testify as a witness at Mr. Young's trial? The State
presents the same issue, although phrased in greater detail.
Eight-year-old FH and her family lived in Rozet, Wyoming, and
FH went to elementary school there. Mr. Young lived with
FH's maternal grandmother in Gillette, Wyoming. During
the winter of 2014-15 and spring of 2015, FH and her brother
often spent the night with their grandmother and Mr. Young.
In April 2015, FH reported to her teachers she had been
sexually abused by Mr. Young. FH said that, on two occasions
the previous winter, Mr. Young awoke her in the living room
where she had been sleeping, undressed her, took her to a
bathroom, and licked her breast area and genitals. FH also
reported that Mr. Young made her kiss his penis while they
were working on a "monster truck" in a carport
located near Mr. Young's house.
The State charged Mr. Young with two counts of first degree
sexual abuse of a minor under Wyo. Stat. Ann. § 6-2-314
(LexisNexis 2017), and three counts of second degree sexual
abuse of a minor under Wyo. Stat. Ann. § 6-2-315
(LexisNexis 2017). Because Mr. Young had previously been
convicted of a similar crime, the State asserted the
penalties for his crimes should be enhanced under Wyo. Stat.
Ann. § 6-2-306(e) (LexisNexis 2017) to life in prison
without the possibility of parole. Mr. Young pleaded not
guilty to all counts.
[¶7] Prior to trial, the defense requested a hearing on
FH's competence as a witness. The district court held a
hearing, where it asked FH about various topics, including
general questions about her memory of the abuse. After FH
stated that she did not remember the abuse, the district
judge took a break and expressed concern to counsel about
FH's memory. When the hearing recommenced, the judge
questioned her about movies and other events that would have
happened around the same time as the charged events and she
was able to recall them. The district court found her
competent to testify.
The district court held a three-day jury trial beginning
February 27, 2017. FH testified at the trial, describing the
abuse in detail, and the jury returned guilty verdicts on all
charges. Mr. Young stipulated that he had previously been
convicted of a similar crime, so the penalties for his
convictions in this case were enhanced. The district court
ordered him to serve five consecutive sentences of life in
prison without the possibility of parole. Mr. Young timely
filed a notice of appeal.
We believe it is worthwhile to refine our standard of review
for determinations of child witness competency. This Court
has repeatedly stated that a district court's competency
determination will not be disturbed unless it is shown to be
clearly erroneous. See, e.g., Griggs v.
State, 2016 WY 16, ¶ 11, 367 P.3d 1108, 1119 (Wyo.
2016); Mersereau v. State, 2012 WY 125, ¶ 5,
286 P.3d 97, 103 (Wyo. 2012); English v. State, 982
P.2d 139, 145 (Wyo. 1999). However, we have also emphasized
that the district court "has broad discretion in
determining whether a witness is competent to testify, "
indicating that the abuse of discretion standard of review is
appropriate. Gruwell v. State, 2011 WY 67, ¶
18, 254 P.3d 223, 229 (Wyo. 2011).
Our standard of review for determinations of child witness
competency originated in the seminal case on the issue -
Larsen v. State, 686 P.2d 583 (Wyo. 1984). Although
in Larsen the district court's determination
that the minor was a competent witness was reviewed for plain
error, we referenced both the clearly erroneous and the abuse
of discretion standards of review. We said:
[I]t is the duty of the court to examine a child to determine
competency and . . . this question is left almost entirely to
the sound discretion of the trial judge. Burt v.
Burt, 48 Wyo. 19, 41 P.2d 524 (1935). The United States
Supreme Court held in Wheeler v. United States, 159
U.S. 523, 16 S.Ct. 93, 40 L.Ed. 244 (1895):
"That the boy was not by reason of his youth, as a
matter law, absolutely disqualified as a witness is clear.
While no one would think of calling as a witness an infant
only two or three years old, there is no precise age which
determines the question of competency. This depends upon the
capacity and intelligence of the child, his appreciation of
the difference between truth and falsehood, as well as of his
duty to tell the former. The decision of this question rests
primarily with the trial judge, who sees the proposed
witness, notices his manner, his apparent possession or lack
of intelligence, and may resort to any examination which will
tend to disclose his capacity and intelligence, as well as
his understanding of the obligations of an oath. As many of
these matters cannot be photographed into the record, the
decision of the trial judge will not be disturbed on review,
unless from that which is preserved it is clear that it was
erroneous." 16 S.Ct. at 93.
Id. at 585 (emphasis added). The Larsen
court concluded, however, that it could not "find an
abuse o[f] discretion in allowing this child to testify nor
[did it] find a plain and unequivocal violation of a rule of
law." Id. at 586.
A case upon which Larsen relied, Burt, also
referred to both the clearly erroneous and abuse of
discretion standards of review, but ultimately concluded it
would be improper to "interfere with the discretion of
the trial judge." Burt, 41 P.2d at 525-26.
Thus, it appears this Court actually applied the abuse of
discretion standard of review in Larsen and
Burt. However, over the years, Larsen has
been interpreted as having adopted the clearly erroneous
standard for reviewing the district court's ultimate
determination on competency. See Baum v. State, 745
P.2d 877, 879-80 (Wyo. 1987); English, 982 P.2d at
145; Mersereau, ¶ 5, 286 P.3d at 103;
Griggs, ¶ 11, 367 P.3d at 1119.
The clearly erroneous and abuse of discretion standards of
review have much in common, in that they are both deferential
to the district court. See, e.g., Lovato v.
State, 2010 WY 38, ¶ 11, 228 P.3d 55, 57 (Wyo.
2010) (clearly erroneous); Garland v. State, 2017 WY
102, ¶ 24, 401 P.3d 480, 487 (Wyo. 2017) (abuse of
discretion). Typically, though, the clearly erroneous
standard is used to evaluate a district court's findings
of fact, while another standard is used to determine whether
the district court's decision was legally correct. For
example, in reviewing a district court's ruling on a
motion to suppress evidence allegedly obtained through an
improper search and/or seizure, we apply the clearly
erroneous standard to the district court's findings of
fact and the de novo standard to its ruling on the
underlying legal issue of whether the defendant's
constitutional rights were violated. See, e.g.,
Kennison v. State, 2018 WY 46, ¶ 11, 417 P.3d
146, 147 (Wyo. 2018); Jennings v. State, 2016 WY 69,
¶ 8, 375 P.3d 788, 790 (Wyo. 2016).
On the other hand, the abuse of discretion standard is
generally used to review claims that the district court erred
in admitting evidence when a proper objection was made at
trial. See, e.g., Garrison v. State, 2018 WY 9,
¶ 19, 409 P.3d 1209, 1215 (Wyo. 2018). A review of cases
from other jurisdictions reveals the abuse of discretion
standard is commonly used to review a lower court's
determination that a child witness was competent to testify.
See, e.g., Commonwealth v. Delbridge, 855
A.2d 27, 34, n.8 (Pa. 2003); Baldit v. State, 522
S.W.3d 753, 761 (Tex. Ct. App. 2017); Davis v.
State, 751 S.W.2d 11, 13 (Ark. Ct. App. 1988); State
v. Williams, 2018 WL 1217361, *2 (Ohio Ct. App. Mar. 8,
2018); State v. Spaniol, 895 N.W.2d 329, 337 (S.D.
2017); Marn v. People, 486 P.2d 424, 426 (Colo.
1971) (en banc); Ortiz v. Commonwealth, 667 S.E.2d
751, 756 (Va. 2008).
While the clearly erroneous standard of review is the correct
standard for reviewing a district court's underlying
factual findings,  the abuse of discretion standard is
appropriate for reviewing the district court's final
determination of competence and, thus, the admissibility of
the child's testimony. Mr. Young does not claim the
district court made a factual error regarding FH's
testimony at the competency hearing; instead, he claims the
district court did not properly apply the Larsen
test to the facts. Consequently, we will apply the abuse of
discretion standard to review the district court's
determination that FH was competent to testify. In doing so,
we "consider the reasonableness of the district
court's ruling." Triplett v. State, 2017 WY
148, ¶ 23, 406 P.3d 1257, 1262 (Wyo. 2017).
"'Determining whether the trial court abused its
discretion involves consideration of whether the court could
reasonably conclude as it did, and whether it acted in an
arbitrary and capricious manner.'" Id.,
(quoting Lancaster v. State, 2002 WY 45, ¶ 11,
43 P.3d 80, 87 (Wyo. 2002)). Specifically, with regard to
child witness competency determinations,
"[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 her voice and watches her mannerisms during
examination. These observations are a vital part of the
ultimate ruling on competency."
Gruwell, ¶ 25, 254 P.3d at 231 (quoting
Seward v. State, 2003 WY 116, ¶ 32, 76 P.3d
805, 819 (Wyo. 2003)).
W.R.E. 601 provides that "[e]very person is competent to
be a witness except as otherwise provided in these
rules." See also, Larsen, 686 P.2d at 585
(citing 3 Louisell and Mueller, Federal Evidence § 250
(1979)) ("few persons are inherently incapable of
testifying in some manner which is potentially useful").
In general, a witness is competent to testify if she can
"'understand, receive, remember and narrate
impressions and is sensible to the obligations of the oath
taken before testifying.'" Mersereau,
¶ 6, 286 P.3d at 104 (quoting Simmers v. State,
943 P.2d 1189, 1199 (Wyo. 1997)). It is a witness's
intelligence, not her age, that determines whether she is
competent to testify, and the child's statements need not
be perfect for her to be considered competent. Id.;
Trujillo v. State, 880 P.2d 575, 579 (Wyo. 1994) (the
district court did not err in finding the child competent to
testify even though some of his answers were nonsensical). We
do not single out isolated statements, but look at the
child's entire testimony in determining whether the
district court properly ruled she could testify. See id.;
Griggs, ¶ 23, 367 P.3d at 1121. See also,
Punches v. State, 944 P.2d 1131, 1136 (Wyo. 1997).
Wyoming uses a five-part test adopted in Larsen, 686
P.2d at 585, to determine a child witness's competence to
testify. The district court must determine whether the child
"(1) an understanding of the obligation to speak the
truth on the witness stand; (2) the mental capacity at the
time of the occurrence concerning which [she] is to testify,
to receive an accurate impression of it; (3) a memory
sufficient to retain an independent recollection of the
occurrence; (4) the capacity to express in words [her] memory
of the occurrence; and (5) the capacity to understand simple
questions about it."
Id. (citations omitted).
Focusing on the third Larsen factor, Mr. Young
claims the record does not support the district court's
determination that FH had a memory sufficient to retain an
independent recollection of the occurrence. The district
court specifically found that FH's testimony at the
competency hearing demonstrated she had a sufficient memory
of the time-period, but was generally reluctant to talk about
the abuse. It also indicated that there is a difference