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ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
JOHN MAUZY PITTMAN, CHIEF JUDGE
May 28, 2008
STATE OF ARKANSAS
APPEAL FROM SALINE COUNTY
CIRCUIT COURT [NO. CR-2005580-A]
HON. GRISHAM A. PHILLIPS,
Appellant was found guilty by a jury of first-degree battery and sentenced to twenty
years’ imprisonment. On appeal, he argues that there is no substantial evidence to show that
he caused the victim's injuries, and that the trial court erred in allowing testimony by the
victim's eight-year-old sister because she was not competent to testify. We affirm.
To determine sufficiency of the evidence to sustain a criminal conviction, we view the
evidence in the light most favorable to the State, considering only the evidence that supports
the verdict, and we must affirm if the verdict is supported by substantial evidence, i.e.,
evidence of such force and character to compel a conclusion one way or the other with
reasonable certainty. Wells v. State, 93 Ark. App. 106, 217 S.W.3d 145 (2005). Matters of
weight and credibility are for the jury to resolve and are outside the scope of our review.
Stewart v. State, 88 Ark. App. 110, 195 S.W.3d 385 (2004).
Here, it is not contested that the twenty-three-month-old victim was severely injured.
Appellant argues only that it was not proven by competent evidence that he intentionally
caused those injuries. We disagree. There was evidence that the victim's mother left the
children in appellant's custody when she was gone. During this time, the victim's sister
observed appellant grab the infant victim and slam her forcefully against the wall in the
hallway of the trailer in which they lived. The victim's sister was able to see this unobserved
because she was watching through a slit in the doorway. A police officer who investigated
testified that there were indentations in the hallway wall at about shoulder height and that the
trailer was unusual in that there was a gap of approximately two inches between the floor and
the bottom of the interior doors. A physician testified that the victim suffered massive internal
injuries to the brain. She stated that such injuries could not be caused by falling out of a
bunk-bed, as the mother claimed, and that a fall of two stories or more would be required to
produce such injuries. Furthermore, the physician testified that a fall would not likely
produce the victim's eye injuries, which are associated instead with shaken-baby syndrome.
The physician testified that, in her opinion, the victim's injuries were produced by severe
shaking. We hold that this is substantial evidence to support appellant's conviction for firstdegree battery.
Appellant next argues that the trial court erred in refusing to strike the testimony of
the victim's sister as untrustworthy and incompetent. The criteria for determining whether
a witness is competent to testify are: (1) the ability to understand the obligation of an oath and
to comprehend the obligation imposed by it; or (2) an understanding of the consequences of
false swearing; or (3) the ability to receive accurate impressions and to retain them, to the
extent that the capacity exists to transmit to the fact finder a reasonable statement of what was
seen, felt, or heard. Clem v. State, 351 Ark. 112, 90 S.W.3d 428 (2002). The law applicable
to appellate review of competency determinations was thoroughly discussed by the Arkansas
Supreme Court in Byndom v. State, 344 Ark. 391, 399, 39 S.W.3d 781, 785 (2001):
The question of the competency of a witness is a matter
lying within the sound discretion of the trial court and in the
absence of clear abuse, we will not reverse on appeal. King v.
State, 317 Ark. 293, 877 S.W.2d 583 (1994); Jackson v. State, 290
Ark. 375, 720 S.W.2d 282 (1986). The trial court must begin
with the presumption that every person is competent to be a
witness. Id.; Ark. R. Evid. 601. The party alleging a witness is
incompetent has the burden of persuasion. Logan v. State, 299
Ark. 266, 773 S.W.2d 413 (1989). The issue of competency of
a witness is one in which the trial judge's evaluation is
particularly important due to the opportunity he is afforded to
observe the witness and the testimony. Clifton v. State, 289 Ark.
63, 709 S.W.2d 63 (1986). As long as the record is one upon
which the trial judge could find a moral awareness of the
obligation to tell the truth and an ability to observe, remember
and relate facts, we will not hold there has been a manifest error
or abuse of discretion in allowing the testimony. Hoggard v.
State, 277 Ark. 117, 640 S.W.2d 102 (1982); Chambers v. State,
275 Ark. 177, 628 S.W.2d 306 (1982).
Child witnesses are treated no differently than adults in determining competency. The age of
a child is not determinative of competency, and we apply the same presumption and standards
in deciding the capacity of a child witness to testify as are applied in determining the
competency of any witness. Modlin v. State, 353 Ark. 94, 110 S.W.3d 727 (2003).
Appellant argues that the witness's testimony was not completely consistent, but
internal inconsistencies are common even in the testimony of adult witnesses, and are more
relevant to the weight of the evidence than to the competency of the witness to testify. See
Duvall v. State, 41 Ark. App. 148, 852 S.W.2d 144 (1993). Here, the inconsistencies were
Appellant also argues that appellant was not competent because she did not
understand the consequences of false swearing. However, the witness testified that she
understood the difference between the truth and a lie and that lies were wrong and were
punished. On this record, we cannot say that the trial court manifestly abused its discretion
in allowing the testimony. See id.
BIRD and VAUGHT, JJ., agree.